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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event report): July 2, 1996
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BANK OF AMERICA BANK OF AMERICA, FSB
NATIONAL TRUST AND
SAVINGS ASSOCIATION
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(EXACT NAME OF REGISTRANTS AS SPECIFIED IN CHARTER)
United States United States
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(STATE OF OTHER JURISDICTION OF INCORPORATION)
333-3200
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(COMMISSION FILE NUMBER)
94-1687665 91-0221850
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(I.R.S. EMPLOYER IDENTIFICATION NUMBER)
555 California Street 555 California Street
San Francisco, CA 94104 San Francisco, CA 94104
(415) 622-3530 (415) 622-2220
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(ADDRESS AND TELEPHONE NUMBER OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
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Item 5. OTHER EVENTS
FILING OF POOLING AND SERVICING AGREEMENT*
In connection with the offering of BankAmerica Manufactured Housing
Contract Trust Senior/Subordinate Pass-Through Certificates, Series 1996-1
(the "Publicly Offered Certificates"), Bank of America National Trust and
Savings Association, Bank of America, FSB and The First National Bank of
Chicago, as trustee, entered into the Pooling and Servicing Agreement dated
as of June 1, 1996.
The Pooling and Servicing Agreement is attached hereto as Exhibit 99.1.
Exhibits A-1 and A-2 to the Pooling and Servicing Agreement are being filed
concurrently in paper format, pursuant to a continuing hardship exemption
under Rule 202 of Regulation S-T.
The Opinion of Morrison & Foerster LLP regarding certain tax issues
with respect to the Publicly Offered Certificates is attached hereto as
Exhibit 99.2
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* Capitalized terms used herein without definition shall have the meanings
assigned to them in the Preliminary Prospectus Supplement and related
Prospectus, both dated June 3, 1995, of the Registrants relating to the
Publicly Offered Certificates.
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Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
99.1 Pooling and Servicing Agreement, dated as of June 1, 1996.
99.2 Morrison & Foerster LLP Tax Opinion
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrants duly caused this report to be signed on their behalf by the
undersigned hereunto duly authorized.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
BANK OF AMERICA, FSB
By:
-----------------------------------------
Shaun M. Maguire
Dated: July 2, 1996.
San Francisco, California
* Mr. Maguire is a Senior Vice President of Bank of America National Trust
and Savings Association and Assistant Treasurer of Bank of America, FSB.
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EXHIBIT INDEX
(ENTRIES FOLLOWED BY (P) ARE BEING FILED IN PAPER FORMAT PURSUANT TO A
CONTINUING HARDSHIP EXEMPTION GRANTED UNDER RULE 202 OF REGULATION S-T)
Exhibit Page
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99.1 Pooling and Servicing Agreement, dated as of June 1, 1996 6
(a) Exhibit A-1 to the Pooling and Servicing Agreement:
Contract Schedule -- BankAmerica Housing Services (P)
(b) Exhibit A-2 to the Pooling and Servicing Agreement:
Contract Schedule -- Bank of America (P)
99.2 Morrison & Foerster LLP Tax Opinion 203
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
CONTRACT SELLER,
BANKAMERICA HOUSING SERVICES,
an unincorporated division of BANK OF AMERICA, FSB,
CONTRACT SELLER AND SERVICER,
and
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1996
BankAmerica Manufactured Housing Contract Trust
Senior/Subordinate Pass-Through Certificates
Series 1996-1
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TABLE OF CONTENTS
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Page
ARTICLE I DEFINITIONS 1
SECTION 1.01. Terms 1
SECTION 1.02. Construction 27
ARTICLE II CONVEYANCE OF CONTRACTS;
REPRESENTATIONS AND WARRANTIES 28
SECTION 2.01. Conveyance of Contracts 28
SECTION 2.02. Filing and Assignment; Name Change or Relocation 29
SECTION 2.03. Acceptance by Trustee 30
SECTION 2.04. Certificate Ratings 30
SECTION 2.05. Representations and Warranties Regarding the Servicer 30
SECTION 2.06. Covenants of the Contract Sellers, Trustee
and Servicer 31
SECTION 2.07. Authentication and Delivery of Certificates 32
SECTION 2.08. Designations Under the REMIC Provisions 32
SECTION 2.09. Covenants of the Servicer 32
ARTICLE III REPRESENTATIONS AND WARRANTIES
BY THE CONTRACT SELLERS 33
SECTION 3.01. Representations and Warranties of the Contract Sellers 33
SECTION 3.02. Representations and Warranties Regarding each Contract 34
SECTION 3.03. Representations and Warranties Regarding the Contracts
in the Aggregate 38
SECTION 3.04. Representations and Warranties Regarding the
Contract Files 38
SECTION 3.05. Repurchases of Contracts or Substitution of Contracts
for Breach of Representations and Warranties 39
SECTION 3.06. General 42
ARTICLE IV ADMINISTRATION AND SERVICING
OF CONTRACTS 43
SECTION 4.01. Responsibility for Contract Administration and
Servicing 43
SECTION 4.02. Standard of Care 43
SECTION 4.03. Records 43
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SECTION 4.04. Inspection 44
SECTION 4.05. Establishment of and Deposits in Certificate Accounts 44
SECTION 4.06. Payment of Taxes 45
SECTION 4.07. Enforcement 45
SECTION 4.08. Transfer of Certificate Account 46
SECTION 4.09. Maintenance of Hazard Insurance Policies 46
SECTION 4.10. Fidelity Bond and Errors and Omissions Insurance 48
SECTION 4.11. Collections under Hazard Insurance Policies;
Consent to Transfers of Manufactured Homes;
Assumption Agreements 48
SECTION 4.12. Realization Upon Defaulted Contracts 49
SECTION 4.13. Costs and Expenses 49
SECTION 4.14. Trustee to Cooperate 49
SECTION 4.15. Servicing and Other Compensation 50
SECTION 4.16. Custody of Contracts 50
SECTION 4.17. REMIC Compliance 51
SECTION 4.18. Management of REO Property 55
SECTION 4.19. Reports to the Securities and Exchange Commission 56
SECTION 4.20. Annual Statement as to Compliance 57
SECTION 4.21. Annual Independent Public Accountants'
Servicing Report 57
ARTICLE V PAYMENTS, MONTHLY ADVANCES
AND MONTHLY REPORTS 58
SECTION 5.01. Monthly Advances by the Servicer 58
SECTION 5.02. Payments 58
SECTION 5.03. Permitted Withdrawals from the Certificate Account 63
SECTION 5.04. Monthly Reports 64
SECTION 5.05. Certificate of Servicing Officer 68
SECTION 5.06. Other Data 69
SECTION 5.07. Statements to Certificateholders 69
SECTION 5.08. Reserve Account 74
ARTICLE VI THE CERTIFICATES 75
SECTION 6.01. The Certificates 75
SECTION 6.02. Certificate Register; Registration of Transfer and
Exchange of Certificates 76
SECTION 6.03. Mutilated, Destroyed, Lost or Stolen Certificates 80
SECTION 6.04. Persons Deemed Owners 80
SECTION 6.05. Access to List of Certificateholders' Names and
Addresses 81
SECTION 6.06. Global Certificates 81
SECTION 6.07. Notices to Depository 82
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SECTION 6.08. Definitive Certificates 82
ARTICLE VII THE CONTRACT SELLERS AND THE SERVICER 84
SECTION 7.01. Liabilities to Obligors 84
SECTION 7.02. Servicer's Indemnities 84
SECTION 7.03. Operation of Indemnities 84
SECTION 7.04. Merger or Consolidation of the Contract Sellers
or the Servicer 84
SECTION 7.05. Limitation on Liability of the Contract Sellers,
the Servicer and Others 85
SECTION 7.06. Assignment by Servicer 85
SECTION 7.07. Successor to the Servicer 86
ARTICLE VIII EVENTS OF DEFAULT 88
SECTION 8.01. Events of Default 88
SECTION 8.02. Waiver of Defaults 89
SECTION 8.03. Trustee to Act; Appointment of Successor 89
SECTION 8.04. Notification to Certificateholders 90
SECTION 8.05. Effect of Transfer 90
SECTION 8.06. Transfer of the Accounts 90
ARTICLE IX CONCERNING THE TRUSTEE 91
SECTION 9.01. Duties of Trustee 91
SECTION 9.02. Certain Matters Affecting the Trustee 92
SECTION 9.03. Trustee Not Liable for Certificates or Contracts 93
SECTION 9.04. Trustee May Own Certificates 93
SECTION 9.05. Servicer to Pay Fees and Expenses of Trustee,
Paying Agent and Certificate Administrator 94
SECTION 9.06. Eligibility Requirements for Trustee 94
SECTION 9.07. Resignation and Removal of the Trustee 95
SECTION 9.08. Successor Trustee 96
SECTION 9.09. Merger or Consolidation of Trustee 96
SECTION 9.10. Appointment of Co-Trustee or Separate Trustee 96
SECTION 9.11. Appointment of Office or Agency 97
SECTION 9.12. Certificate Administrator 98
SECTION 9.13. Appointment of Paying Agent 98
ARTICLE X TERMINATION 100
SECTION 10.01. Termination 100
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ARTICLE XI MISCELLANEOUS PROVISIONS 105
SECTION 11.01. Amendment 105
SECTION 11.02. Recordation of Agreement; Counterparts 106
SECTION 11.03. Governing Law 106
SECTION 11.04. Calculations 106
SECTION 11.05. Notices 107
SECTION 11.06. Severability of Provisions 108
SECTION 11.07. Assignment 108
SECTION 11.08. Limitation on Rights of Certificateholders 108
SECTION 11.09. Inspection and Audit Rights 109
SECTION 11.10. Certificates Nonassessable and Fully Paid 109
SECTION 11.11. Official Record 109
EXHIBITS
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EXHIBIT A-1 CONTRACT SCHEDULE --
BANKAMERICA HOUSING SERVICES A-1
EXHIBIT A-2 CONTRACT SCHEDULE -- BANK OF AMERICA A-2
EXHIBIT B-1 FORM OF CLASS A-1 CERTIFICATE B-1-1
EXHIBIT B-2 FORM OF CLASS A-2 CERTIFICATE B-2-1
EXHIBIT B-3 FORM OF CLASS A-3 CERTIFICATE B-3-1
EXHIBIT B-4 FORM OF CLASS A-4 CERTIFICATE B-4-1
EXHIBIT B-5 FORM OF CLASS A-5 CERTIFICATE B-5-1
EXHIBIT B-6 FORM OF CLASS A-6 CERTIFICATE B-6-1
EXHIBIT B-7 FORM OF CLASS A-7 CERTIFICATE B-7-1
EXHIBIT B-8 FORM OF CLASS B-1 CERTIFICATE B-8-1
EXHIBIT B-9 FORM OF CLASS B-2 CERTIFICATE B-9-1
EXHIBIT C FORM OF REVERSE OF CERTIFICATES C
EXHIBIT D FORM OF R CERTIFICATE D
EXHIBIT E FORM OF OFFICER'S CERTIFICATE E
EXHIBIT F FORM OF CERTIFICATE OF SERVICING OFFICER F
EXHIBIT G FORM OF TRANSFER AFFIDAVIT G
EXHIBIT H FORM OF TRANSFEROR CERTIFICATE H
EXHIBIT I FORM OF DEPOSITORY AGREEMENT I
EXHIBIT J FORM OF INVESTMENT LETTER [NON-RULE 144A] J
EXHIBIT K FORM OF RULE 144A LETTER K
EXHIBIT L AUCTION PROCEDURES L
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This POOLING AND SERVICING AGREEMENT, dated as of June 1, 1996
(the "Agreement"), is executed by and among Bank of America National Trust and
Savings Association ("Bank of America"), as a Contract Seller, BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services"), as a Contract Seller and Servicer (and,
together with Bank of America, the "Contract Sellers"), and The First National
Bank of Chicago, as trustee (together with its permitted successors in trust,
the "Trustee").
Bank of America, as a Contract Seller, and BankAmerica Housing
Services, as a Contract Seller and Servicer, have duly authorized the execution
and delivery of this Agreement to provide for the issuance of BankAmerica
Manufactured Housing Contract Trust, Senior/Subordinate Pass-Through
Certificates, Series 1996-1 (the "Certificates"). The Certificates issued
hereunder shall be limited to the amount herein described. All covenants and
agreements made by the Contract Sellers herein are for the benefit and security
of the Certificateholders. The Contract Sellers are entering into this
Agreement, and the Trustee is accepting the trusts created hereby for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
In consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. TERMS.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
ADVISOR: As defined in Section 10.01(b)(3) hereof.
AFFILIATE: As to any specified Person, any other Person controlling
or controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
AGGREGATE NET LIQUIDATION LOSSES: With respect to the time of
reference thereto, the aggregate of the amounts by which (i) the outstanding
principal balance of each Contract that
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during such time of reference had become a Liquidated Contract, plus accrued and
unpaid interest thereon at the related Contract Rate to the Due Date for such
Contract in the Collection Period in which such Contract became a Liquidated
Contract exceeds (ii) the Net Liquidation Proceeds for such Contract.
AGREEMENT: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto.
AUCTION DATE: As defined in Section 10.01(b) hereof.
AVAILABLE DISTRIBUTION AMOUNT: As to any Distribution Date, the sum
of (a) the amount on deposit or otherwise credited to the Certificate Account as
of the end of the Collection Period ending immediately prior to such
Distribution Date, less the portion of such amount (i) permitted to be withdrawn
by the Servicer pursuant to Section 5.03 or (ii) constituting Excess Contract
Payments and (b) the Monthly Advance for such Distribution Date actually made in
respect of such Distribution Date.
AVERAGE SIXTY-DAY DELINQUENCY RATIO: As to any Distribution Date, the
arithmetic average of the Sixty-Day Delinquency Ratios for such Distribution
Date and the two preceding Distribution Dates.
AVERAGE THIRTY-DAY DELINQUENCY RATIO: As to any Distribution Date,
the arithmetic average of the Thirty-Day Delinquency Ratios for such
Distribution Date and the two preceding Distribution Dates.
BANKAMERICA HOUSING SERVICES: BankAmerica Housing Services, an
unincorporated division of Bank of America, FSB, a federal savings bank
organized under the laws of the United States, or its successors in interest or
assigns permitted under this Agreement.
BAFSB: Bank of America, FSB, its successors or assigns.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or
(ii) a day on which banking institutions in the City of New York, New York, or
the State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
CERTIFICATE: Any of the BankAmerica Manufactured Housing Contract
Trust, Senior/Subordinate Pass-Through Certificates, Series 1996-1.
CERTIFICATE ACCOUNT: The separate Eligible Account created and
initially maintained by the Trustee pursuant to Section 4.05 in the name of the
Trustee for the benefit of the Holders of the Certificates. Funds in the
Certificate Account shall be held in trust for the aforementioned
Certificateholders for the uses and purposes set forth in this Agreement.
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CERTIFICATE ADMINISTRATOR: The Person appointed by the Trustee from
time to time pursuant to Section 9.12.
CERTIFICATE BALANCE: When used with respect to a single Class, the
Class A-1 Certificate Balance, Class A-2 Certificate Balance, Class A-3
Certificate Balance, Class A-4 Certificate Balance, Class A-5 Certificate
Balance, Class A-6 Certificate Balance, Class A-7 Certificate Balance, Class B-1
Certificate Balance or Class B-2 Certificate Balance, as applicable; and when
used with respect to more than one Class of Certificates, the sum of the
Class A-1 Certificate Balance, Class A-2 Certificate Balance, Class A-3
Certificate Balance, Class A-4 Certificate Balance, Class A-5 Certificate
Balance, Class A-6 Certificate Balance, Class A-7 Certificate Balance, Class B-1
Certificate Balance and Class B-2 Certificate Balance, as applicable.
CERTIFICATE OWNER: With respect to a Global Certificate, the person
that is the beneficial owner of an interest in such Global Certificate.
CERTIFICATE REGISTER: The register maintained pursuant to Section
6.02 hereof.
CERTIFICATEHOLDER or HOLDER: The person in whose name a Certificate
is registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository, in the case of any Global Certificates), except that solely for
the purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Contract Sellers, the Servicer or any Affiliate of
the Contract Sellers or the Servicer shall be deemed not to be Outstanding and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; PROVIDED, HOWEVER, that if any such
Person (including the Contract Sellers, collectively,) owns 100% of the
Percentage Interests evidenced by a Class of Certificates, such Certificates
shall be deemed to be Outstanding for purposes of any provision hereof that
requires the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to
rely conclusively on a certification of either Contract Seller, the Servicer or
any Affiliate of such Contract Seller or the Servicer in determining which
Certificates are registered in the name of an Affiliate of such Contract Seller
or the Servicer.
CLASS or CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5, CLASS
A-6, CLASS A-7, CLASS B-1, CLASS B-2 or CLASS R: Pertaining to Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class A-6 Certificates, Class A-7
Certificates, Class B-1 Certificates, Class B-2 Certificates or Class R
Certificates, as the case may be.
CLASS A-1 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B-1 and EXHIBIT C hereto.
CLASS A-1 CERTIFICATE BALANCE: At any time, the Initial Class A-1
Certificate Balance minus the sum of all principal distributions previously
made to the Class A-1 Certificateholders.
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CLASS A-1 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-1 Certificateholders pursuant to Section 5.02.
CLASS A-1 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class A-1
Pass-Through Rate on the Class A-1 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class A-1 Unpaid Interest Shortfall.
CLASS A-1 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-1 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-1 Interest Distribution Amount."
CLASS A-1 PASS-THROUGH RATE: 6.125% per annum.
CLASS A-1 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-1 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-1 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-2 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B-2 and EXHIBIT C hereto.
CLASS A-2 CERTIFICATE BALANCE: At any time, the Initial Class A-2
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-2 Certificateholders.
CLASS A-2 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-2 Certificateholders pursuant to Section 5.02.
CLASS A-2 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class A-2
Pass-Through Rate on the Class A-2 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class A-2 Unpaid Interest Shortfall.
CLASS A-2 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-2 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-2 Interest Distribution Amount."
CLASS A-2 PASS-THROUGH RATE: 6.650% per annum.
CLASS A-2 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-2 Interest Shortfalls for
prior Distribution Dates exceeds all
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prior distributions made pursuant to Section 5.02 in respect of prior Class A-2
Interest Shortfalls, plus accrued interest thereon (to the extent payment
thereof is legally permissible) at the Class A-2 Pass-Through Rate on such
amount with respect to such prior Distribution Dates.
CLASS A-3 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B-3 and EXHIBIT C hereto.
CLASS A-3 CERTIFICATE BALANCE: At any time, the Initial Class A-3
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-3 Certificateholders.
CLASS A-3 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-3 Certificateholders pursuant to Section 5.02.
CLASS A-3 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class A-3
Pass-Through Rate on the Class A-3 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class A-3 Unpaid Interest Shortfall.
CLASS A-3 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-3 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-3 Interest Distribution Amount."
CLASS A-3 PASS-THROUGH RATE: 6.950% per annum.
CLASS A-3 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-3 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-3 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-3 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-4 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B-4 and EXHIBIT C hereto.
CLASS A-4 CERTIFICATE BALANCE: At any time, the Initial Class A-4
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-4 Certificateholders.
CLASS A-4 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-4 Certificateholders pursuant to
Section 5.02.
CLASS A-4 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class A-4
Pass-Through Rate on the Class A-4 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class A-4 Unpaid Interest Shortfall.
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CLASS A-4 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-4 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-4 Interest Distribution Amount."
CLASS A-4 PASS-THROUGH RATE: 7.300% per annum.
CLASS A-4 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-4 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-4 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-4 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-5 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B-5 and EXHIBIT C hereto.
CLASS A-5 CERTIFICATE BALANCE: At any time, the Initial Class A-5
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-5 Certificateholders.
CLASS A-5 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-5 Certificateholders pursuant to Section 5.02.
CLASS A-5 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class A-5
Pass-Through Rate on the Class A-5 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class A-5 Unpaid Interest Shortfall.
CLASS A-5 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-5 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-5 Interest Distribution Amount."
CLASS A-5 PASS-THROUGH RATE: 7.550% per annum.
CLASS A-5 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-5 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-5 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-5 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-6 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B-6 and EXHIBIT C hereto.
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CLASS A-6 CERTIFICATE BALANCE: At any time, the Initial Class A-6
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-6 Certificateholders.
CLASS A-6 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-6 Certificateholders pursuant to Section 5.02.
CLASS A-6 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class A-6
Pass-Through Rate on the Class A-6 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class A-6 Unpaid Interest Shortfall.
CLASS A-6 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-6 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-6 Interest Distribution Amount."
CLASS A-6 PASS-THROUGH RATE: 8.000% per annum.
CLASS A-6 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-6 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-6 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-6 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-7 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B-7 and EXHIBIT C hereto.
CLASS A-7 CERTIFICATE BALANCE: At any time, the Initial Class A-7
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-7 Certificateholders.
CLASS A-7 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-7 Certificateholders pursuant to Section 5.02.
CLASS A-7 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class A-7
Pass-Through Rate on the Class A-7 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class A-7 Unpaid Interest Shortfall.
CLASS A-7 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-7 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-7 Interest Distribution Amount."
CLASS A-7 PASS-THROUGH RATE: 7.800% per annum.
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CLASS A-7 PERCENTAGE: As to any Distribution Date, (i) if the Class
A-7 Principal Distribution Test has been met or the Senior Certificate Balance
is zero immediately prior to such Distribution Date, the percentage equivalent
of a fraction, the numerator of which is the Class A-7 Certificate Balance
immediately prior to such Distribution Date and the denominator of which is the
sum of:
(a) the Senior Certificate Balance immediately prior to such
Distribution Date,
(b) the Class A-7 Certificate Balance immediately prior to such
Distribution Date, and
(c) if the Class B Principal Distribution Test has been met, the
Class B Certificate Balance immediately prior to such Distribution Date, or, if
the Class B Principal Distribution Test has not been met, zero,
or (ii) if the Class A-7 Principal Distribution Test has not been met
and the Senior Certificate Balance is not zero immediately prior to such
Distribution Date, zero; provided that the Class A-7 Percentage shall not be
greater than 100% less the Senior Percentage.
CLASS A-7 PRINCIPAL DISTRIBUTION TEST: The Class A-7 Principal
Distribution Test will be met in respect of a Distribution Date if the following
conditions are satisfied:
(1) the Distribution Date is on or after the Distribution Date
in July 2000;
(2) the percentage equivalent of a fraction, the numerator of
which is the sum of (a) the Class A-7 Certificate Balance immediately
prior to such Distribution Date and (b) the Class B Certificate
Balance immediately prior to such Distribution Date and the
denominator of which is the Pool Scheduled Principal Balance
immediately prior to such Distribution Date, is equal to at least
27.375% (which is 1.5 times the percentage equivalent of the fraction,
the numerator of which is the sum of (a) the Initial Class A-7
Certificate Balance, (b) the Initial Class B-1 Certificate Balance and
(c) the Initial Class B-2 Certificate Balance and the denominator of
which is the Cut-off Date Pool Principal Balance);
(3) the Cumulative Realized Losses as of such Distribution Date
do not exceed (a) if such Distribution Date is from and including July
2000 and up to and including June 2001, 6.0% of the Cut-off Date Pool
Principal Balance, (b) if such Distribution Date is from and including
July 2001 and up to and including June 2002, 7.0% of the Cut-off Date
Pool Principal Balance, (c) if such Distribution Date is from and
including July 2002 and up to and including June 2003, 8.5% of the
Cut-off Date Pool Principal Balance and (d) if such Distribution Date
is in or after July 2003, 9.5% of the Cut-off Date Pool Principal
Balance;
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(4) the Current Realized Loss Ratio as of such Distribution Date
does not exceed 2.5%;
(5) the Average Sixty-Day Delinquency Ratio as of such
Distribution Date does not exceed 3.5%; and
(6) the Average Thirty-Day Delinquency Ratio as of such
Distribution Date does not exceed 5.5%.
CLASS A-7 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-7 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-7 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-7 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS B CERTIFICATE BALANCE: As to any Distribution Date, the sum of
the Class B-1 and Class B-2 Certificate Balances (before giving effect to the
principal distributions on such Distribution Date).
CLASS B PERCENTAGE: As to any Distribution Date, (i) if the Class B
Principal Distribution Test has been met or the Senior Certificate Balance and
the Class A-7 Certificate Balance are zero immediately prior to such
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the Class B Certificate Balance immediately prior to such Distribution
Date and the denominator of which is the sum of:
(a) the Senior Certificate Balance immediately prior to such
Distribution Date,
(b) the Class A-7 Certificate Balance immediately prior to such
Distribution Date, and
(c) the Class B Certificate Balance immediately prior to such
Distribution Date,
or (ii) if the Class B Principal Distribution Test has not been met and the
Senior Certificate Balance and the Class A-7 Certificate Balance are not zero
immediately prior to such Distribution Date, zero; provided that the Class B
Percentage shall not be greater than 100% less the sum of the Senior Percentage
and the Class A-7 Percentage.
CLASS B PRINCIPAL DISTRIBUTION TEST: The Class B Principal
Distribution Test will be met in respect of a Distribution Date if the following
conditions are satisfied:
(1) the Distribution Date is on or after the Distribution Date
in July 2000;
(2) the percentage equivalent of a fraction, the numerator of
which is the Class B Certificate Balance immediately prior to such
Distribution Date and the denominator of which is the Pool Scheduled
Principal Balance immediately prior to such Distribution Date, is
equal to at least 14.625% (which is approximately 1.5 times the
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percentage equivalent of the fraction, the numerator of which is the
sum of (a) the Initial Class B-1 Certificate Balance and (b) the
Initial Class B-2 Certificate Balance and the denominator of which is
the Cut-off Date Pool Principal Balance);
(3) the Cumulative Realized Losses as of such Distribution Date
do not exceed (a) if such Distribution Date is from and including July
2000 and up to and including June 2001, 6.0% of the Cut-off Date Pool
Principal Balance, (b) if such Distribution Date is from and including
July 2001 and up to and including June 2002, 7.0% of the Cut-off Date
Pool Principal Balance, (c) if such Distribution Date is from and
including July 2002 and up to and including June 2003, 8.5% of the
Cut-off Date Pool Principal Balance and (d) if such Distribution Date
is in or after July 2003, 9.5% of the Cut-off Date Pool Principal
Balance;
(4) the Current Realized Loss Ratio as of such Distribution Date
does not exceed 2.5%;
(5) the Average Sixty-Day Delinquency Ratio as of such
Distribution Date does not exceed 3.5%; and
(6) the Average Thirty-Day Delinquency Ratio as of such
Distribution Date does not exceed 5.5%.
CLASS B-1 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B-8 and EXHIBIT C hereto.
CLASS B-1 CERTIFICATE BALANCE: At any time, the Initial Class B-1
Certificate Balance minus the sum of all principal distributions previously made
to the Class B-1 Certificateholders.
CLASS B-1 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class B-1 Certificateholders pursuant to Section 5.02.
CLASS B-1 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class B-1
Pass-Through Rate on the Class B-1 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class B-1 Unpaid Interest Shortfall.
CLASS B-1 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class B-1 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class B-1 Interest Distribution Amount."
CLASS B-1 PASS-THROUGH RATE: 7.875% per annum.
CLASS B-1 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-1 Interest Shortfalls for
prior Distribution Dates exceeds all
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prior distributions made pursuant to Section 5.02 in respect of prior Class B-1
Interest Shortfalls, plus accrued interest thereon (to the extent payment
thereof is legally permissible) at the Class B-1 Pass-Through Rate on such
amount with respect to such prior Distribution Dates.
CLASS B-2 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-9 and EXHIBIT C hereto.
CLASS B-2 CERTIFICATE BALANCE: At any time, the Initial Class B-2
Certificate Balance minus the sum of all principal distributions previously made
to the Class B-2 Certificateholders.
CLASS B-2 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class B-2 Certificateholders pursuant to Section 5.02.
CLASS B-2 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class B-2
Pass-Through Rate on the Class B-2 Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such Distribution
Date) and (b) any Class B-2 Unpaid Interest Shortfall.
CLASS B-2 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class B-2 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class B-2 Interest Distribution Amount."
CLASS B-2 PASS-THROUGH RATE: 8.500% per annum.
CLASS B-2 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-2 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class B-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class B-2 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS R CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
D hereto.
CLAUSE X AMOUNT: As defined in Section 5.02(a).
CLAUSE Y AMOUNT: As to any Distribution Date, $4,915,708, which is
equivalent to 2.0% of the Cut-off Date Pool Principal Balance.
CLOSING DATE: June 13, 1996.
CODE: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
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COLLECTED SCHEDULED PAYMENTS: As to any Distribution Date, (a) the
amount on deposit in the Certificate Account as of the end of the related
Collection Period, less (b) the sum of (i) the aggregate of all Partial
Prepayments collected during such Collection Period, (ii) the aggregate of all
payments collected during such Collection Period on Contracts that were prepaid
in full during such Collection Period (less the aggregate of the scheduled
payments due on such Contracts that were delinquent as of the beginning of such
Collection Period and recovered out of such collections), (iii) the aggregate of
the Net Liquidation Proceeds collected in respect of all Contracts that became
Liquidated Contracts during such Collection Period (less the aggregate of
scheduled payments due on such Contracts that were delinquent at the beginning
of such Collection Period and recovered out of such collections and less any
Repossession Profits collected during such Collection Period), (iv) the
aggregate of the Repurchase Prices of all Contracts that were repurchased by a
Contract Seller pursuant to Section 3.05 (less the aggregate of scheduled
payments due on such Contracts that were delinquent at the beginning of such
Collection Period and recovered out of such collections), (v) the amounts
permitted to be withdrawn by the Servicer from the Certificate Account pursuant
to clauses (i), (ii), (iii), (iv), (v) and (vii) of Section 5.03, and
(vi) amounts representing Excess Contract Payments.
COLLECTION PERIOD: With respect to any Distribution Date, the
calendar month preceding the month of the Distribution Date.
COMPUTER TAPE: The computer tape generated by the Servicer on behalf
of each Contract Seller which provides information relating to the Contracts
sold by such Contract Seller, and includes the master file and the history file.
CONTRACT: Any one of the manufactured housing installment sale
contracts or installment loan agreements described in the Contract Schedule and
constituting part of the corpus of the Trust Fund, which Contracts are to be
sold and assigned by the Contract Sellers to the Trustee and which are the
subject of this Agreement. The Contracts include all related security interests
and any and all rights to receive payments which are due pursuant thereto from
and after the Cut-off Date, but exclude any rights to receive payments which
were due pursuant thereto prior to the Cut-off Date.
CONTRACT FILE: As to each Contract, (a) the original copy of the
Contract, (b) the original title document issued to BankAmerica Housing Services
as secured lender or agent therefor for the related Manufactured Home, unless
the laws of the jurisdiction in which the related Manufactured Home is located
do not provide for the issuance of any title documents for manufactured housing
to secured lenders, (c) evidence of one or more of the following types of
perfection of the security interest in favor of BankAmerica Housing Services as
secured lender or agent therefor in the related Manufactured Home granted by
such Contract, as appropriate: (1) notation of such security interest on the
title document, (2) a financing statement meeting the requirements of the UCC,
with evidence of recording in the appropriate offices indicated thereon, or (3)
such other evidence of perfection of a security interest in a manufactured
housing unit as is customary in such jurisdiction, (d) the assignment of the
Contract from the manufactured housing dealer to BankAmerica Housing Services,
if any, including any intervening assignments, and (e) any extension,
modification or waiver agreement(s).
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CONTRACT POOL: The pool of Contracts held in the Trust Fund.
CONTRACT RATE: With respect to each Contract, the per annum rate of
interest borne by such Contract, as set forth in such Contract.
CONTRACT SCHEDULE: The list identifying each Contract constituting
part of the corpus of the Trust Fund, which list is attached hereto as
EXHIBITS A-1 and A-2, and which (a) identifies each Contract by contract number
and name and address of the Obligor, and (b) sets forth as to each Contract
(i) the Scheduled Principal Balance as of the Cut-off Date, (ii) the amount of
each monthly payment due from the Obligor, (iii) the Contract Rate, and (iv) the
maturity date.
CONTRACT SELLERS: As to any Contract sold by it, BankAmerica Housing
Services or Bank of America, as the case may be, in each case in its capacity as
seller of certain Contracts to the Trust Fund pursuant to this Agreement; it
being understood that wherever the term "Contract Seller" is used hereunder, it
is meant to refer to each such Contract Seller with respect to the Contracts
sold by it.
CORPORATE TRUST OFFICE: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at One First National Plaza, Chicago, Illinois 60670-0126, Attention: Corporate
Trust Services Division, except that for purposes of Section 9.11, such term
shall mean the office or agency of the Trustee in the Borough of Manhattan, the
City of New York, which office at the date hereof is located at 14 Wall Street,
Eighth Floor, New York, New York 10005.
CUMULATIVE REALIZED LOSSES: As to any Distribution Date, the
Aggregate Net Liquidation Losses for the period from the Cut-off Date through
the end of the Collection Period preceding the month of such Distribution Date.
CURRENT REALIZED LOSS RATIO: As to any Distribution Date, the
annualized percentage equivalent of the fraction, the numerator of which is the
sum of the Aggregate Net Liquidation Losses for the three preceding Collection
Periods and the denominator of which is the arithmetic average of the Pool
Scheduled Principal Balances for such Distribution Date and the preceding two
Distribution Dates.
CUT-OFF DATE: June 1, 1996
CUT-OFF DATE POOL PRINCIPAL BALANCE: $245,785,417.44.
DEFICIENCY EVENT: As defined in Section 5.02(a).
DEFINITIVE CERTIFICATES: As defined in Section 6.08.
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DENOMINATION: With respect to each Regular Certificate, the amount
set forth on the face thereof as the "Initial Principal Balance of this
Certificate." With respect to each Class R Certificate, the Percentage Interest
appearing on the face thereof.
DEPOSITORY: The initial Depository shall be the Depository Trust
Company, the nominee of which is Cede & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall initially be the
registered Holder of the Global Certificates. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
DEPOSITORY AGREEMENT: The agreement among the Contract Sellers, the
Trustee and the initial Depository, dated as of the Closing Date, substantially
in the form of EXHIBIT I.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: With respect to any Distribution Date, the third
Business Day prior to such Distribution Date.
DISTRIBUTION DATE: The 10th day of each calendar month after the
initial issuance of the Certificates, or if such 10th day is not a Business Day,
the next succeeding Business Day, commencing July 10, 1996.
DUE DATE: The day of the month on which each scheduled payment of
principal and interest is due on a Contract, exclusive of any days of grace.
ELIGIBLE ACCOUNT: An account that is one of the following (i) an
account maintained with a FDIC-insured depository institution which is subject
to examination by federal or state authorities and the commercial paper of which
has a rating of P-1 from Moody's (if rated by Moody's) and F-1 from Fitch (if
rated by Fitch) or the long-term deposits or long-term unsecured senior debt
obligations of which are in one of the two highest rating categories of Moody's
and Fitch (if rated by Fitch), or maintained with a depository institution that
is otherwise acceptable to each Rating Agency (as evidenced by a letter from
each Rating Agency to such effect), (ii) a trust account maintained with the
Trustee or, if the Certificate Administrator is not the Trustee, with the
Certificate Administrator, in which the funds are either held uninvested or
invested solely in Eligible Investments, or (iii) an account that is otherwise
acceptable to the Rating Agencies, as evidenced by a letter from each Rating
Agency, without a reduction or withdrawal of the rating of the Certificates.
ELIGIBLE INVESTMENTS: One or more of the following in the order of
priority specified herein:
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(a) any common trust fund, collective investment trust or money
market fund acceptable to Fitch and rated Aaa by Moody's; and
(b) other obligations or securities that are acceptable to each
Rating Agency as an Eligible Investment hereunder and will not result in a
reduction in or withdrawal of the then current rating or ratings of the
Certificates, as evidenced by a letter to such effect from each Rating Agency;
provided, however, that no investments in "interest only" stripped obligations
shall qualify as an Eligible Investment pursuant to this definition.
ELIGIBLE SUBSTITUTE CONTRACT: As to any Replaced Contract for which
such Eligible Substitute Contract is being substituted pursuant to
Section 3.05(b), a Contract that (a) as of the date of its substitution,
satisfies all of the representations and warranties (which, except when
expressly stated to be as of origination, shall be deemed to be determined as of
the date of its substitution rather than as of the Cut-off Date or the Closing
Date) in Section 3.02 and does not cause any of the representations and
warranties in Section 3.03, after giving effect to such substitution, to be
incorrect, (b) after giving effect to the scheduled payment due in the month of
such substitution, has a Scheduled Principal Balance that is not greater than
the Scheduled Principal Balance of such Replaced Contract, (c) has a Contract
Rate that is at least equal to the Contract Rate of such Replaced Contract, (d)
has a remaining term to scheduled maturity that is not greater than the
remaining term to scheduled maturity of the Replaced Contract, and (e) has not
been delinquent for more than 31 days as to any scheduled payment due within
twelve months of the date of its substitution.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA RESTRICTED CERTIFICATE: Any Class A-7, Class B-1, Class B-2 or
Class R Certificate.
EVENT OF DEFAULT: Any one of the Events of Default described in
Section 8.01 hereof.
EXCESS CONTRACT PAYMENT: With respect to any Contract, any portion of
a payment of principal and interest on such Contract, that (a) is in excess of
the scheduled payment (or is an integral multiple thereof and has not been
identified by the Obligor as a Principal Prepayment), (b) is not a Principal
Prepayment and (c) is not part of the Liquidation Proceeds of such Contract or
the Repurchase Price of such Contract paid pursuant to Section 3.05.
EXTENSION FEE: Any extension fee paid by the Obligor on a Contract.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
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FIDELITY BOND: A fidelity bond to be maintained by the Servicer
pursuant to Section 4.10.
FIRST DISTRIBUTION DATE: July 10, 1996.
FITCH: Fitch Investors Service, L.P.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
FOREIGN PERSON: A Person that is not a citizen or resident of the
United States, a corporation, partnership, or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
FORMULA PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution Date,
an amount equal to the sum of (a) the Total Regular Principal Amount for such
Distribution Date and (b) any previously undistributed shortfalls in the
distribution of the Total Regular Principal Amount in respect of prior
Distribution Dates.
FRACTIONAL INTEREST: As to any Certificate, the product of (a) the
Percentage Interest evidenced by such Certificate multiplied by (b) the amount
derived from dividing the Certificate Balance of the Class represented by such
Certificate by the aggregate Certificate Balances of each Class.
GLOBAL CERTIFICATE: Any Certificate registered in the name of the
Depository or its nominee, ownership of which is reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository and as described in Section 6.06). On the Closing Date, only
the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7
and Class B-1 Certificates will be Global Certificates.
HAZARD INSURANCE POLICY: With respect to each Contract, the policy of
fire and extended coverage insurance (and federal flood insurance, if
applicable) required to be maintained for the related Manufactured Home, as
provided in Section 4.09 (which may be a blanket insurance policy maintained by
the Servicer in accordance with the terms and conditions of Section 4.09).
INDEPENDENT CONTRACTOR: Either (i) any Person (other than the
Servicer or the Trustee) that would be an "independent contractor" with respect
to the Trust Fund within the meaning of Section 856(d)(3) of the Code if the
Trust Fund were a real estate investment trust (except that the ownership test
set forth in that Section shall be considered to be met by any Person that owns,
directly or indirectly, 35 percent or more of any Class of Certificates, or such
other interest in any Class of Certificates as is set forth in an Opinion of
Counsel, which shall be at no expense to the
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Trustee or the Trust Fund, delivered to the Trustee), so long as the Trust
Fund does not receive or derive any income from such person and provided that
the relationship between such Person and the Trust Fund is at arm's length,
all within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii)
any other Person (including the Servicer and the Trustee) upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee
or the Trust Fund, to the effect that the taking of any action in respect of
any REO Property by such Person, subject to any conditions therein specified,
that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code).
INITIAL CLASS A-1 CERTIFICATE BALANCE: $47,129,000.
INITIAL CLASS A-2 CERTIFICATE BALANCE: $51,893,000.
INITIAL CLASS A-3 CERTIFICATE BALANCE: $20,316,000.
INITIAL CLASS A-4 CERTIFICATE BALANCE: $26,068,000.
INITIAL CLASS A-5 CERTIFICATE BALANCE: $28,483,000.
INITIAL CLASS A-6 CERTIFICATE BALANCE: $27,040,000.
INITIAL CLASS A-7 CERTIFICATE BALANCE: $20,891,000.
INITIAL CLASS B-1 CERTIFICATE BALANCE: $15,361,000.
INITIAL CLASS B-2 CERTIFICATE BALANCE: $8,604,417.44.
LATE PAYMENT FEES: Any late payment fees paid by Obligors on
Contracts after all sums received have been allocated first to regular
installments due or overdue and all such installments are then paid in full.
LATEST DUE DATE: The latest date on which any Contract matures.
LIQUIDATED CONTRACT: Any defaulted Contract as to which the Servicer
has determined that all amounts which it expects to recover from or on account
of such Contract have been recovered; PROVIDED that any defaulted Contract in
respect of which the related Manufactured Home has been realized upon and
liquidated and the proceeds of such disposition have been received shall be
deemed to be a Liquidated Contract.
LIQUIDATION EXPENSES: All reasonable out-of-pocket expenses
(exclusive of overhead expenses) which are incurred by the Servicer in
connection with the liquidation of any defaulted Contract, on or prior to the
date on which the related Manufactured Home is liquidated, including legal fees
and expenses, any unreimbursed amount expended by the Servicer pursuant to
Sections
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4.06, 4.07, 4.09 or 4.13 (to the extent such amount is reimbursable under the
terms of Sections 4.06, 4.07, 4.09 or 4.13, as the case may be) with respect to
such Contract, and any unreimbursed expenditures for property taxes or other
taxes or charges or for property restoration or preservation that are related to
such liquidation.
LIQUIDATION PROCEEDS: Cash (including insurance proceeds other than
those applied to the restoration of the related Manufactured Home or released to
the related Obligor in accordance with the normal servicing procedures of the
Servicer) received in connection with the liquidation of defaulted Contracts,
whether through repossession or otherwise.
LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Contract and
the denominator of which is the Original Value of the related Manufactured Home.
MAJORITY IN INTEREST: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least 51%
of the Percentage Interests evidenced by all Certificates of such Class.
MANUFACTURED HOME: A unit of manufactured housing which meets the
requirements of Section 25(e)(10) of the Code, securing the indebtedness of the
Obligor under the related Contract.
MINIMUM TERMINATION AMOUNT: As of any time after the Pool Scheduled
Principal Balance is less than 10% of the Cut-off Date Pool Principal Balance
(in the case of a Termination Auction) or 5% of the Cut-off Date Pool Principal
Balance (in the case of a purchase of Contracts by the Servicer pursuant to
Section 10.01(a)(ii) hereof), an amount equal to the sum of (a) the Class A-1
Certificate Balance, (b) any shortfall in interest due to the Class A-1
Certificateholders in respect of prior Distribution Dates, (c) one month's
interest on the Class A-1 Certificate Balance at the Class A-1 Pass-Through
Rate, (d) the Class A-2 Certificate Balance, (e) any shortfall in interest due
to the Class A-2 Certificateholders in respect of prior Distribution Dates,
(f) one month's interest on the Class A-2 Certificate Balance at the Class A-2
Pass-Through Rate, (g) the Class A-3 Certificate Balance, (h) any shortfall in
interest due to the Class A-3 Certificateholders in respect of prior
Distribution Dates, (i) one month's interest on the Class A-3 Certificate
Balance at the Class A-3 Pass-Through Rate, (j) the Class A-4 Certificate
Balance, (k) any shortfall in interest due to the Class A-4 Certificateholders
in respect of prior Distribution Dates, (l) one month's interest on the
Class A-4 Certificate Balance at the Class A-4 Pass-Through Rate, (m) the
Class A-5 Certificate Balance, (n) any shortfall in interest due to the
Class A-5 Certificateholders in respect of prior Distribution Dates, (o) one
month's interest on the Class A-5 Certificate Balance at the Class A-5
Pass-Through Rate, (p) the Class A-6 Certificate Balance, (q) any shortfall in
interest due to the Class A-6 Certificateholders in respect of prior
Distribution Dates, (r) one month's interest on the Class A-6 Certificate
Balance at the Class A-6 Pass-Through Rate, (s) the Class A-7 Certificate
Balance, (t) any shortfall in interest due to the Class A-7 Certificateholders
in respect of prior Distribution Dates, (u) one month's interest on the
Class A-7 Certificate Balance at the Class A-7 Pass-Through Rate, (v) the
Class B-1 Certificate Balance, (w) any shortfall in interest due to the
Class B-1 Certificateholders in respect
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of prior Distribution Dates, (x) one month's interest on the Class B-1
Certificate Balance at the Class B-1 Pass-Through Rate, (y) the Class B-2
Certificate Balance, (z) any shortfall in interest due to the Class B-2
Certificateholders in respect of prior Distribution Dates, and (aa) one month's
interest on the Class B-2 Certificate Balance at the Class B-2 Pass-Through
Rate.
MONTHLY ADVANCE: As to any Distribution Date, the lesser of
(1) (a) the amount, if any, by which (i) the Scheduled Amount exceeds (ii) the
Collected Scheduled Payments, less (b) the amount of any scheduled payment on a
Contract due during the related Collection Period which the Servicer has
determined would be a Nonrecoverable Advance if an advance in respect of such
scheduled payment were made and (2) the amount by which the Available
Distribution Amount (exclusive of the Monthly Advance component thereof) for
such Distribution Date is less than the sum of (a) the Total Regular Principal
Amount and (b) the sum of the Class A-1 Interest Distribution Amount, the
Class A-2 Interest Distribution Amount, the Class A-3 Interest Distribution
Amount, Class A-4 Interest Distribution Amount, the Class A-5 Interest
Distribution Amount, the Class A-6 Interest Distribution Amount, the Class A-7
Interest Distribution Amount, the Class B-1 Interest Distribution Amount and the
Class B-2 Interest Distribution Amount.
MONTHLY ADVANCE REIMBURSEMENT AMOUNT: Any amount received or deemed
to be received by the Servicer pursuant to Section 5.01(b) or (c) in
reimbursement of a Monthly Advance made out of its own funds.
MONTHLY REPORT: The monthly report described in Section 5.04.
MONTHLY SERVICING FEE: As of any Distribution Date, an amount equal
to one-twelfth of 1.00% per annum (or, in the case of a successor Servicer
engaged at any time after BankAmerica Housing Services is no longer the
Servicer, the percentage agreed upon pursuant to Section 7.07) of the Pool
Scheduled Principal Balance for such Distribution Date.
MOODY'S: Moody's Investors Service, Inc.
NET CONTRACT RATE: 9.50% (which represents the sum of the Class B-2
Pass-Through Rate and the Monthly Servicing Fee).
NET LIQUIDATION PROCEEDS: As to any Liquidated Contract, Liquidation
Proceeds net of the sum of (i) Liquidation Expenses, (ii) all accrued and unpaid
interest thereon through the date the related Contract becomes a Liquidated
Contract and (iii) any amount required to be paid to the Obligor or any other
Person with an interest in the Manufactured Home that is senior to the interest
of the Trust Fund.
NONRECOVERABLE ADVANCE: Any advance made or proposed to be made
pursuant to Section 5.01 which the Servicer believes, in its good faith
judgment, is not, or if made would not be, ultimately recoverable from late
payments, Liquidation Proceeds or otherwise. In determining whether an advance
is or will be nonrecoverable, the Servicer need not take into account that it
might receive any amounts in a deficiency judgment. The determination by the
Servicer that any advance is, or if made would constitute, a Nonrecoverable
Advance, shall be evidenced by an
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Officers' Certificate of the Servicer delivered to the Trustee and stating the
reasons for such determination.
OBLIGOR: Each Person who is indebted under a Contract or who has
acquired a Manufactured Home subject to a Contract.
OFFICER'S CERTIFICATE: A certificate (i) signed by the Chairman of
the Board, the Vice Chairman of the Board, the President, a Vice President
(however denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one of the assistant treasurers or assistant secretaries of a
Contract Seller or the Servicer (or any other officer customarily performing
functions similar to those performed by any of the above designated officers and
also to whom, with respect to a particular matter, such matter is referred
because of such officer's knowledge of and familiarity with a particular
subject) or (ii), if provided for in this Agreement, signed by a Servicing
Officer and delivered to the Contract Sellers and the Trustee, as the case may
be, as required by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may be the
in-house counsel for a Contract Seller or the Servicer, reasonably acceptable to
the Trustee and the Contract Sellers, as the case may be.
ORIGINAL VALUE: With respect to any Manufactured Home that was new at
the time the related Contract was originated, the retail stated cash sale price
of such Manufactured Home, plus taxes and, to the extent financed under such
Contract, closing fees paid to third parties, insurance and prepaid finance
charges. With respect to any Manufactured Home that was used at the time the
related Contract was originated, the total delivered sales price of such
Manufactured Home, plus taxes and, to the extent financed under such Contract,
closing fees paid to third parties, insurance and prepaid finance charges.
OUTSTANDING: With respect to any Contract as to the time of reference
thereto, a Contract that has not been fully prepaid, has not become a Liquidated
Contract, and has not been repurchased pursuant to Section 3.05 prior to such
time of reference.
OUTSTANDING AMOUNT ADVANCED: As to any Distribution Date, the
aggregate of all Monthly Advances made by the Servicer out of its own funds
pursuant to Section 5.01 less the aggregate of all Monthly Advance Reimbursement
Amounts actually received by the Servicer prior to such Distribution Date.
OWNERSHIP INTEREST: Any legal or beneficial, direct or indirect,
ownership or other interest.
PARTIAL PREPAYMENT: Any Principal Prepayment other than a Principal
Prepayment in Full.
PAYING AGENT: Any paying agent appointed pursuant to Section 9.13.
PERCENTAGE INTEREST: As to any Certificate (other than a Class R
Certificate) of any Class, the percentage interest evidenced thereby in
distributions required to be made on the Certificates
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of such Class, such percentage interest being equal to the percentage obtained
by dividing the original denomination of such Certificate by the aggregate of
the original denominations of all of the Certificates of such Class; and as to a
Class R Certificate, the percentage set forth on the face thereof.
PERMITTED TRANSFEREE: Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in Section 860E(c)(1) of the Code) with respect to any
Class R Certificate, (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust whose income from sources outside the
United States is includable in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States unless such Person has furnished the transferor and the
Trustee with a duly completed Internal Revenue Service Form 4224. The terms
"United States," "State" and "International Organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
POOL FACTOR: As of any Distribution Date and as to any Class of
Certificates, the percentage obtained by dividing the Class A-1 Certificate
Balance, the Class A-2 Certificate Balance, the Class A-3 Certificate Balance,
Class A-4 Certificate Balance, the Class A-5 Certificate Balance, the Class A-6
Certificate Balance, the Class A-7 Certificate Balance, the Class B-1
Certificate Balance or the Class B-2 Certificate Balance, as the case may be
(after giving effect to the principal distributions on such Distribution Date),
by the Initial Class A-1 Certificate Balance, the Initial Class A-2 Certificate
Balance, the Initial Class A-3 Certificate Balance, Initial Class A-4
Certificate Balance, the Initial Class A-5 Certificate Balance, the Initial
Class A-6 Certificate Balance, the Initial Class A-7 Certificate Balance, the
Initial Class B-1 Certificate Balance or the Initial Class B-2 Certificate
Balance, as the case may be, carried out to seven decimal places.
POOL SCHEDULED PRINCIPAL BALANCE: As to any Distribution Date, the
Cut-off Date Pool Principal Balance less the aggregate of the Total Regular
Principal Amounts for all prior Distribution Dates.
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PRINCIPAL PREPAYMENT: (i) Subject to clause (ii) of this definition,
with respect to any Contract, any payment or any portion thereof or other
recovery on such Contract (other than a Liquidated Contract or a Contract
repurchased pursuant to Section 3.05) that exceeds the amount necessary to bring
such Contract current as of any Due Date unless (A) the related Obligor has
notified or confirmed with the Servicer that such payment is to be applied as
Scheduled Payments for future Due Dates or (B) the amount of such excess payment
is approximately equal (subject to a variance of plus or minus 10%) to the
amount of the Scheduled Payment on the next Due Date; (ii) notwithstanding the
provisions of the preceding clause (i), if any payment or any portion thereof or
other recovery on a Contract (other than a Liquidated Contract or a Contract
repurchased pursuant to Section 3.05) is sufficient to pay the outstanding
principal balance of such Contract, all accrued and unpaid interest at the
Contract Rate to the payment date and, at the option of the Servicer, all other
outstanding amounts owing on such Contract, the portion of the payments or
recoveries on such Contract during such Collection Period that is equal to the
Scheduled Principal Balance of such Contract after giving effect to the
scheduled payment on such Contract due in such Collection Period; and (iii) any
cash deposit made with respect to a Contract pursuant to Section 3.05.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment specified in
clause (ii) of the definition of the term "Principal Prepayment."
PRIVATE CERTIFICATE: Any Class B-2 or Class R Certificate.
RATING AGENCY: Either Moody's Investors Service, Inc. or Fitch
Investors Service, L.P.
RECORD DATE: With respect to any Distribution Date, the close of
business on the Business Day preceding such Distribution Date.
REGULAR CERTIFICATES: Any one of the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class B-1 or Class B-2 Certificates.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC PROVISIONS: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO ACCOUNT: As defined in Section 4.17.
REO PROPERTY: As defined in Section 4.17.
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REPLACED CONTRACT: A Contract as to which the relevant Contract
Seller has a Repurchase Obligation and which, at such Contract Seller's option,
is replaced in the Trust Fund by an Eligible Substitute Contract pursuant to
Section 3.05.
REPOSSESSION PROFITS: As to any Distribution Date, the excess, if
any, of Net Liquidation Proceeds in respect of each Contract that became a
Liquidated Contract during the related Collection Period over the sum of the
remaining principal balance of such Contract plus accrued and unpaid interest at
the related Contract Rate on the remaining principal balance thereof from the
Due Date to which interest was last paid by the Obligor to the Due Date in the
month in which such Contract became a Liquidated Contract.
REPURCHASE OBLIGATION: The obligation of a Contract Seller, set forth
in Section 3.05, to repurchase the related Contracts as to which there exists an
uncured breach of a representation or warranty contained in Sections 3.02 or
3.03.
REPURCHASE PRICE: With respect to any Contract required to be
repurchased hereunder, an amount equal to the remaining principal amount
outstanding on such Contract as of the beginning of the month of repurchase plus
accrued interest from the Due Date with respect to which the Obligor last made a
payment to the Due Date in the Collection Period in which such Contract is
repurchased.
RESERVE ACCOUNT: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 5.08 in the name of the Trustee
for the benefit of the Holders of the Certificates and designated "[Trustee] in
trust for registered holders of BankAmerica Manufactured Housing Contract Trust,
Senior/Subordinate Pass-Through Certificates, Series 1996-1". Funds in the
Reserve Account shall be held in trust for the aforementioned Certificateholders
for the uses and purposes set forth in this Agreement.
RESERVE ACCOUNT CAP: As to any Distribution Date shall be (i) as to
any Distribution Date (after giving effect to distributions due thereon) after
the Closing Date and until none of the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7 and Class B-1 Certificates remain
outstanding, $1,228,927 (which is 0.5% of the Cut-off Date Pool Principal
Balance) and (ii) as to any Distribution Date (after giving effect to
distributions due thereon) after none of the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7 and Class B-1 Certificates remain
outstanding, the lesser of the then outstanding Class B-2 Certificate Balance
and $1,228,927.
RESERVE ACCOUNT DRAW AMOUNT: An amount which is equal to the lesser
of (a) the amount then on deposit in the Reserve Account and (b) the amount, if
any, by which the aggregate of amounts due to Certificateholders in clauses
(i) through (viii) of Section 5.02(a) exceeds the Available Distribution Amount
on such Distribution Date.
RESPONSIBLE OFFICER: When used with respect to the Trustee, the
Paying Agent or the Certificate Administrator, the chairman or vice chairman of
the board of directors, the chairman or vice chairman of any executive committee
of the board of directors, the president, any vice
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president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller, or any other officer customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
SCHEDULED AMOUNT: As to any Distribution Date, the amount equal to
the aggregate of the scheduled payments that were due during the Collection
Period ending immediately prior to such Distribution Date in respect of
Contracts that were Outstanding immediately following such Collection Period or
whose last scheduled payment was due during such Collection Period.
SCHEDULED PRINCIPAL BALANCE: As to any Contract and any Distribution
Date, the principal balance of such Contract (before any adjustment by reason of
bankruptcy, moratorium or similar waiver or grace period) as of the Due Date in
the Collection Period next preceding such Distribution Date (or, with respect to
the First Distribution Date, as of the Cut-off Date) as specified in the
amortization schedule for such Contract at the time relating thereto, after
giving effect to all previous Partial Prepayments, all previous scheduled
principal payments (whether or not paid) and to the scheduled payment of
principal due on such Due Date.
SCHEDULED PRINCIPAL REDUCTION AMOUNT: As to any Distribution Date,
(a) the sum of the scheduled payments due during the Collection Period ending
immediately prior to such Distribution Date in respect of all Contracts that are
Outstanding at the beginning of such Collection Period less (b) 1/12th of the
product of (i) the Pool Scheduled Principal Balance prior to giving effect to
the Total Regular Principal Amount for such Distribution Date, and (ii) the
weighted average Contract Rate for such Contracts, calculated on the basis of
the remaining principal balances of such Contracts as of the first day of such
Collection Period; PROVIDED that, on each anniversary of the First Distribution
Date (or, at the option of the Servicer, on more than one Distribution Date, as
selected by the Servicer, in each year), the Scheduled Principal Reduction
Amount shall equal the amount, if any, necessary to cause the Pool Scheduled
Principal Balance for the Distribution Date next succeeding such Distribution
Date to equal the aggregate of the Scheduled Principal Balances for such
Distribution Date.
SECURITIES ACT: The Securities Act of 1933, as amended.
SENIOR CERTIFICATES: The Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the Class
A-5 Certificates and the Class A-6 Certificates.
SENIOR CERTIFICATE BALANCE: As to any Distribution Date, the sum of
the Class A-1 Certificate Balance, the Class A-2 Certificate Balance, the Class
A-3 Certificate Balance, the Class A-4 Certificate Balance, the Class A-5
Certificate Balance and the Class A-6 Certificate Balance.
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SENIOR PERCENTAGE: As to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the Senior Certificate
Balance immediately prior to such Distribution Date and the denominator of which
is the sum of:
(i) the Senior Certificate Balance immediately prior to such
Distribution Date,
(ii) if the Class A-7 Principal Distribution Test has been met,
the Class A-7 Certificate Balance immediately prior to such
Distribution Date or, if the Class A-7 Principal Distribution Test has
not been met, zero, and
(iii) if the Class B Principal Distribution Test has been met,
the Class B Certificate Balance immediately prior to such Distribution
Date or, if the Class B Principal Distribution Test has not been met,
zero;
provided that the Senior Percentage shall not be greater than 100%.
SERVICER: BankAmerica Housing Services, or its successors in interest
or any successor servicer under this Agreement as provided by Section 7.07.
SERVICING FILE: All documents, records, and other items maintained by
the Servicer with respect to a Contract and not included in the corresponding
Contract File, including the credit application, credit reports and
verifications, appraisals, tax and insurance records, payment records, insurance
claim records, correspondence, and all historical computerized data files.
SERVICING OFFICER: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Contracts whose name
appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
SIXTY-DAY DELINQUENCY RATIO: As to any Distribution Date, the
percentage equivalent of the fraction, the numerator of which is the aggregate
of the outstanding principal balances (as of the end of the preceding Collection
Period) of all Contracts (including Contracts in respect of which the related
Manufactured Home has been repossessed but not yet liquidated) as to which a
scheduled monthly payment thereon (without giving effect to any adjustments
thereto by reason of a bankruptcy or similar proceeding of the Obligor or any
extension or modification granted to such Obligor) is delinquent 60 days or more
as of the end of such Collection Period and the denominator of which is the Pool
Scheduled Principal Balance for such Distribution Date.
STARTUP DAY: As defined in Section 2.08(a) hereof.
TAX MATTERS PERSON: The person designated as "tax matters person" in
the manner provided under Treasury regulation Section 1.860F-4(d) and temporary
Treasury regulation Section 301.6231(a)(7)-1T. Initially, this person shall be
the Servicer.
TERMINATION AUCTION: As defined in Section 10.01(b) hereof.
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THIRTY-DAY DELINQUENCY RATIO: As to any Distribution Date, the
percentage equivalent of the fraction, the numerator of which is the aggregate
of the outstanding principal balances (as of the end of the preceding Collection
Period) of all Contracts (including Contracts in respect of which the related
Manufactured Home has been repossessed but not yet liquidated) as to which a
scheduled monthly payment thereon (without giving effect to any adjustments
thereto by reason of a bankruptcy or similar proceeding of the Obligor or any
extension or modification granted to such Obligor) is delinquent 30 days or more
as of the end of such Collection Period and the denominator of which is the Pool
Scheduled Principal Balance for such Distribution Date.
TOTAL REGULAR PRINCIPAL AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) the Scheduled Principal Reduction Amount for such
Distribution Date, (b) all Partial Prepayments received during the immediately
preceding Collection Period, (c) the Scheduled Principal Balance of each
Contract for which a Principal Prepayment in Full was received during the
immediately preceding Collection Period, (d) the Scheduled Principal Balance of
each Contract that became a Liquidated Contract during the immediately preceding
Collection Period, and (e) the Scheduled Principal Balance of each Contract that
was repurchased during the immediately preceding Collection Period pursuant to
Section 3.05.
TRANSFER: Any direct or indirect transfer or sale of any Ownership
Interest in a Class R Certificate.
TRANSFEREE: Any Person who is acquiring by Transfer any Ownership
Interest in a Class R Certificate.
TRUSTEE: The First National Bank of Chicago, or its successors or
assigns or any successor under this Agreement.
TRUST FUND: The corpus of the trust created by this Agreement, to the
extent described herein, consisting of the Contracts (including the security
interest created thereby), including all rights to receive payments on the
Contracts due on or after the Cut-off Date, such assets as shall from time to
time be identified as deposited in the Certificate Account, the amounts, if any,
on deposit in the Reserve Account, each Manufactured Home which secured a
Contract (which has not been repurchased pursuant to Section 3.05) and which has
been acquired in realizing upon such Contract, the Repurchase Obligation, and
the proceeds of the Hazard Insurance Policies.
UCC: The Uniform Commercial Code, as in effect in the relevant
jurisdiction or, in the case of the State of Louisiana, the comparable
provisions of Louisiana law.
VOTING RIGHTS: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, 99% of the Voting Rights shall be allocated among Holders of the
Regular Certificates in proportion to the Certificate Balances of their
respective Certificates on such date, and 1% of the Voting Rights shall be
allocated among Holders of the Class R Certificates, in each case allocated
among the Certificates of each such Class in accordance with their respective
Percentage Interests.
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SECTION 1.02 CONSTRUCTION.
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural and the
part the whole and "or" has the inclusive meaning sometimes represented by the
phrase "and/or." The words "include" or "including" shall be deemed followed by
the phrase "without limitation." The words "hereof," "herein," "hereunder" and
similar terms in this Agreement refer to the Agreement as a whole and not to any
particular provision of this Agreement. The Section and other headings
contained in this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation
thereof in any respect. Section, subsection, Schedule, Appendix and Exhibit
references are to this Agreement unless otherwise specified.
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ARTICLE II
CONVEYANCE OF CONTRACTS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. CONVEYANCE OF CONTRACTS .
(a) Each Contract Seller, concurrently with the execution and delivery
hereof, does hereby transfer, sell, assign, set over and otherwise convey to the
Trustee without recourse (i) all of the right, title and interest of such
Contract Seller in and to the Contracts listed in EXHIBIT A-1 (as to BankAmerica
Housing Services) and EXHIBIT A-2 (as to Bank of America) (including the
security interests created thereby), including all principal of and interest due
on or with respect to the Contracts on or after the Cut-off Date (other than
payments of principal and interest due on the Contracts before the Cut-off
Date), (ii) all of the rights under all Hazard Insurance Policies relating to
the Manufactured Homes securing the Contracts for the benefit of the creditors
under such Contracts, (iii) all documents contained in the Contract Files, and
(iv) all proceeds derived from any of the foregoing.
The ownership of each Contract and the contents of the related Contract
File and Servicing File are vested in the Trustee. The Servicer hereby
disclaims any and all right, title and other ownership interest in and to the
Contracts (including the security interests created thereby), and the contents
of each Contract File and Servicing File are and shall be held by the Servicer
for the benefit of the Trustee as the owner thereof (it being understood that
the Servicer's possession of the contents of each Contract File and Servicing
File so retained is for the sole purpose of servicing the related Contract, and
such retention and possession by the Servicer is in a custodial capacity only).
Neither of the Contract Sellers nor the Servicer shall take any action
inconsistent with the Trustee's ownership of the Contracts, and each Contract
Seller and the Servicer shall promptly indicate to all inquiring parties that
the Contracts have been sold, transferred, assigned, set over and conveyed to
the Trustee and shall not claim any ownership interest in the Contracts.
(b) Although the parties intend that the conveyance of the Contract
Sellers' right, title and interest in and to the Contracts pursuant to this
Agreement shall constitute a purchase and sale and not a loan, if such
conveyances are deemed to be a loan, the parties intend that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The parties also intend and agree that the Contract
Sellers shall be deemed to have granted to the Trustee, and the Contract Sellers
do hereby grant to the Trustee, a perfected first-priority security interest in
all of the right, title and interest in, to and under the Contracts, all
payments of principal of or interest on such Contracts, to the extent
constituting part of the Trust Fund, all other payments made in respect of such
Contracts, all of the rights under all Hazard Insurance Policies relating to the
Manufactured Homes securing the Contracts for the benefit of the creditors under
such Contracts, all documents contained in the Contract Files, and all proceeds
of any of the Contracts and all such payments made in respect of such Contracts,
to the extent constituting part of the Trust Fund, and that this Agreement shall
constitute a security agreement under applicable law. If the trust created by
this Agreement terminates prior to the satisfaction of the claims of any Person
under any Certificates, the security interest created hereby
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shall continue in full force and effect and the Trustee shall be deemed to be
the collateral agent for the benefit of such Person.
SECTION 2.02. FILING AND ASSIGNMENT; NAME CHANGE OR RELOCATION .
(a) On or prior to the Closing Date, the Servicer shall cause to be filed
in the office of the Secretary of State of California:
(i) For any Contracts sold by BankAmerica Housing Services, a UCC-1
financing statement signed by BankAmerica Housing Services describing the
related Contracts as collateral and naming BankAmerica Housing Services as
debtor and the Trustee as secured party; and
(ii) For any Contracts sold by Bank of America, a UCC-1 financing
statement signed by Bank of America and describing such Contracts as collateral
and naming Bank of America as debtor and the Trustee as secured party.
From time to time, the Servicer shall take and cause to be taken such
actions and execute such documents as are necessary to perfect and protect the
Certificateholders' interests in the Contracts and their proceeds and the
Manufactured Homes against all other Persons, including the filing of financing
statements, amendments thereto and continuation statements, the execution of
transfer instruments and the making of notations on or taking possession of all
records or documents of title; PROVIDED, HOWEVER, that BankAmerica Housing
Services, so long as it is the Servicer, shall not be required to cause
notations to be made on any document of title relating to any Manufactured Home
or to execute any transfer instrument relating to any Manufactured Home (other
than a notation or a transfer instrument necessary to show the related Contract
Seller as the lienholder or legal title holder) or to file documents in real
property records with respect to a Manufactured Home or related Contract, absent
notice from the Trustee or either Contract Seller or actual knowledge that such
Manufactured Home has become real property under applicable state law; and
FURTHER PROVIDED, that the Servicer shall have no obligation pursuant to this
sentence with respect to any failure to maintain a first-priority perfected
security interest which results from a breach of any representation or warranty
in Section 3.02(j) or (u) as to the Trustee's security interest in a
Manufactured Home, except to enforce the relevant Contract Seller's obligations
in respect thereof in Section 3.05. The Trustee and the Contract Sellers agree
to take whatever action is necessary to enable the Servicer to fulfill its
obligations as set forth in this Section 2.02(a).
(b) The Servicer agrees to pay all reasonable costs and disbursements in
connection with its duties specified in this Section 2.02.
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SECTION 2.03. ACCEPTANCE BY TRUSTEE .
The Trustee hereby acknowledges conveyance of the Contracts to the Trustee
and declares that the Trustee, directly or through a custodian (which shall be
the Servicer pursuant to Section 4.16), holds and will hold such Contract Files
in trust for the use and benefit of all present and future Certificateholders.
The Trustee hereby certifies (without any independent investigation) that it has
no notice or knowledge of (i) any adverse claim, lien or encumbrance with
respect to any Contract, (ii) any Contract being overdue or dishonored, (iii)
any evidence on the face of any Contract of any security interest therein
adverse to the Trustee's interest, or (iv) any defense against or claim against
any Contract by the Obligor or by any other party. Nothing in this Agreement
shall be construed to constitute acceptance by the Trustee or the Trust Fund of
any liability or obligation of any Contract Seller, whether on any Contract, to
any Obligor, or otherwise.
SECTION 2.04. CERTIFICATE RATINGS .
On the Closing Date, the Trustee shall authenticate and deliver the
Certificates upon instructions from the Contract Sellers pursuant to Section
2.07 and the following documents:
(a) A letter from each Raging Agency confirming that the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class B-1 and Class
B-2 Certificates have been assigned the rating of "Aaa, "Aaa", "Aaa", "Aaa",
"Aaa", "Aaa", "Aa3", "Baa" and "Ba2", respectively (in the case of Moody's) and
"AAA", "AAA", "AAA", "AAA". "AAA", "AAA", "AA-", "BBB" and "BB", respectively
(in the case of Fitch), and
(b) An Officer's Certificate from the Servicer to the effect that the
Servicer has deposited in the Certificate Account $663,831.79, which is all
amounts received on the Contracts from and including the Cut-off Date up to and
including June 10, 1996.
Notwithstanding anything in this Agreement to the contrary, the Servicer
shall deposit into the Certificate Account all amounts in respect of the
Contracts received on or after June 11, 1996 or otherwise required to be
deposited in the Certificate Account by other provisions of this Agreement
pursuant to Section 4.05.
SECTION 2.05. REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICER .
The Servicer makes the following representations and warranties to the
Trustee and the Certificateholders:
(a) ORGANIZATION AND GOOD STANDING. The Servicer is an unincorporated
division of Bank of America, FSB, which is a federal savings bank, duly
organized, validly existing and in good standing under the laws of the United
States, and the Servicer has the corporate power to own its assets and to
transact the respective business in which it is currently engaged. The Servicer
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which its type of organization and the
character of the business transacted by it or
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properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on its business,
properties, assets, or condition (financial or other).
(b) AUTHORIZATION; BINDING OBLIGATIONS. The Servicer has the power and
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under the Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Servicer enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
(c) NO CONSENT REQUIRED. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except such as have been obtained or where the
failure to obtain any such consent, license, approval or authorization, or to
make any registration or declaration does not materially adversely affect the
interests of the Trust Fund or the interests of the Certificateholders therein.
(d) NO VIOLATIONS. The execution, delivery and performance of this
Agreement by the Servicer will not violate any provision of any existing law or
regulation or any order or decree of any court applicable to the Servicer or the
charter or bylaws of the Servicer, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Servicer is a
party or by which the Servicer may be bound except where such violation or
breach does not materially adversely affect the interests of the Trust Fund or
the interests of the Certificateholders therein.
(e) LITIGATION. No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending, or, to the
knowledge of the Servicer, threatened, against the Servicer or any of its
properties or with respect to this Agreement or the Certificates which, if
adversely determined, would in the opinion of the Servicer have a material
adverse effect on the transactions contemplated by this Agreement.
Within 60 days of the earlier of discovery by the Servicer or receipt of
notice by the Servicer of the breach of any representation, warranty or covenant
of the Servicer set forth in this Section 2.05 which materially and adversely
affects the interests of the Certificateholders in any Contract, the Servicer
shall cure such breach in all material respects.
SECTION 2.06. COVENANTS OF THE CONTRACT SELLERS, TRUSTEE AND SERVICER.
Upon discovery by any of the Contract Sellers, the Servicer or the Trustee
of a breach of any of the representations, warranties and covenants set forth in
Article III hereof which materially and adversely affects the value of the
Contracts or the interests of the Certificateholders
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in the Contracts (or which materially and adversely affects the value of or the
interest of the Certificateholders in the related Contract in the case of a
representation, warranty or covenant set forth in Article III hereof and
relating to a particular Contract), the party discovering such breach shall give
prompt written notice to the other parties. The cure of such breach or the
repurchase or substitution for any affected Contract shall be done in accordance
with Section 3.05.
SECTION 2.07. AUTHENTICATION AND DELIVERY OF CERTIFICATES.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed,
authenticated and delivered to or upon the order of the Contract Sellers, the
Certificates in authorized denominations evidencing the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates.
SECTION 2.08. DESIGNATIONS UNDER THE REMIC PROVISIONS.
(a) The Closing Date shall be the "Startup Day" of the Trust Fund for
purposes of the REMIC Provisions.
(b) The Regular Certificates are hereby designated as "regular interests"
and the Class R Certificates are hereby designated as the single Class of
"residual interest" in the Trust Fund.
(c) The Servicer is hereby designated as "Tax Matters Person" with respect
to the Trust Fund as defined in the REMIC Provisions.
(d) The "latest possible maturity date" for purposes of the REMIC
Provisions is the Distribution Date in October 2026.
SECTION 2.09. COVENANTS OF THE SERVICER.
The Servicer hereby covenants to Bank of America and the Trustee that no
written information, certificate of an officer, statement furnished in writing
or written report delivered to either Contract Seller, any Affiliate of either
Contract Seller or the Trustee and prepared by the Servicer pursuant to this
Agreement will contain any untrue statement of a material fact or omit to state
a material fact necessary to make the information, certificate, statement or
report not misleading.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES BY THE
CONTRACT SELLERS
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF THE CONTRACT SELLERS.
Each Contract Seller, for itself, makes the following representations and
warranties to the Trustee (to the extent such representations and warranties are
applicable to such Contract Seller):
(a) ORGANIZATION AND GOOD STANDING; LICENSING. It is a national banking
association (in the case of Bank of America) and BAFSB is a federal savings bank
(in the case of BankAmerica Housing Services), in each case duly organized,
validly existing and in good standing under the laws of the United States, and
it has the corporate power to own its assets and to transact the business in
which it is currently engaged. It is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which its type of
organization and the character of the business transacted by it or properties
owned or leased by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on the business, properties,
assets, or condition (financial or other) of such Contract Seller (as the case
may be). It was properly licensed in each jurisdiction at the time of purchase
or origination of each Contract originated or purchased on an individual basis
by it in such jurisdiction to the extent required by the laws of such
jurisdiction as applied to the purchase or origination and servicing of such
Contract, except where the failure to be so licensed does not materially
adversely affect the interests of the Trust Fund or the Certificateholders in
and to such Contract.
(b) AUTHORIZATION; BINDING OBLIGATIONS. It has the power and authority to
make, execute, deliver and perform this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement. When
executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of such Contract Seller enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) NO CONSENT REQUIRED. It is not required to obtain the consent of any
other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except such as have been obtained or where the
failure to obtain any such consent, license, approval or authorization, or to
make any registration or declaration does not materially adversely affect the
interests of the Trust Fund or the interests of the Certificateholders therein.
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(d) NO VIOLATIONS. The execution, delivery and performance of this
Agreement by such Contract Seller will not violate any provision of any existing
law or regulation or any order or decree of any court applicable to such
Contract Seller or the charter or bylaws of such Contract Seller, or constitute
a material breach of any mortgage, indenture, contract or other agreement to
which such Contract Seller is a party or by which such Contract Seller may be
bound except where such violation or breach does not materially adversely affect
the interests of the Trust Fund or the interests of the Certificateholders
therein.
(e) LITIGATION. No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending or, to its
knowledge, threatened, against it or any of its properties or with respect to
this Agreement or the Certificates which, if adversely determined, would in the
opinion of such Contract Seller have a material adverse effect on the
transactions contemplated by this Agreement.
(f) CHIEF EXECUTIVE OFFICE. As of the Closing Date, its chief executive
office is in California.
(g) NAME CHANGE OR RELOCATION. During the term of this Agreement, it will
not change its name, identity or structure or relocate its chief executive
office without first giving written notice to the Trustee. If any change in
such Contract Seller's name, identity or structure or the relocation of its
chief executive office would make any financing or continuation statement or
notice of lien filed under this Agreement seriously misleading within the
meaning of applicable provisions of the UCC or any title statute, such Contract
Seller, no later than five days after the effective date of such change, shall
file such amendments as may be required to preserve and protect the
Certificateholders' interests in the Contracts and proceeds thereof and in the
Manufactured Homes.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES REGARDING EACH CONTRACT.
The Contracts listed in EXHIBIT A-1 and in EXHIBIT A-2 have been sold by
BankAmerica Housing Services and Bank of America, respectively, in their
capacity as Contract Seller, to the Trust Fund on the date of execution and
delivery hereof. As a condition of the purchase by the Trust Fund, such
Contract Seller represents and warrants to the Trustee as to each Contract sold
by it to the Trust Fund as of the Closing Date (except as otherwise expressly
stated):
(a) PAYMENTS. As of the Cut-off Date, no Contract was more than 59 days
delinquent.
(b) NO WAIVERS. The terms of the Contract have not been waived, altered
or modified in any respect, except by instruments or documents identified in the
Contract File.
(c) BINDING OBLIGATION. The Contract is the legal, valid and binding
obligation of the Obligor thereunder and is enforceable in accordance with its
terms, except as such enforceability may be limited by laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
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(d) NO DEFENSES. The Contract is not subject to any right of rescission,
setoff, counterclaim or defense, including the defense of usury, and the
operation of any of the terms of the Contract or the exercise of any right
thereunder will not render the Contract unenforceable in whole or in part or
subject to any right of rescission, setoff, counterclaim or defense, including
the defense of usury, and no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
(e) INSURANCE. The Manufactured Home securing the Contract is covered by
a Hazard Insurance Policy in the amount required by Section 4.09. All premiums
due as of the Closing Date on such insurance have been paid in full to the
applicable providers of such insurance.
(f) ORIGINATION. To the knowledge of such Contract Seller, the Contract
was either (i) originated by a manufactured housing dealer acting in the regular
course of its business, and purchased on an individual basis by BankAmerica
Housing Services or (ii) originated by BankAmerica Housing Services in the
ordinary course of its business.
(g) LAWFUL ASSIGNMENT. The Contract was not originated in and is not
subject to the laws of any jurisdiction whose laws would make the transfer of
such Contract from such Contract Seller to the Trust Fund under this Agreement
unlawful.
(h) COMPLIANCE WITH LAW. All requirements of any federal, state or local
law, including usury, truth-in-lending and equal credit opportunity laws and
lender licensing laws, applicable to the Contract have been complied with.
(i) CONTRACT IN FORCE. The Contract has not been satisfied or
subordinated in whole or in part or rescinded, and the Manufactured Home
securing the Contract has not been released from the lien of the Contract in
whole or in part.
(j) VALID SECURITY INTEREST. The Contract creates a valid, subsisting and
enforceable first-priority security interest in favor of BankAmerica Housing
Services as secured lender, or agent thereof, in the Manufactured Home covered
thereby; such security interest has been assigned by the Contract Seller as
secured lender to the Trustee in accordance with the terms herein and; the
Trustee has a valid and perfected first-priority security interest in such
Manufactured Home.
(k) CAPACITY OF PARTIES. All parties to the Contract had capacity to
execute the Contract.
(l) GOOD TITLE. It purchased the Contract for value and took possession
thereof, without knowledge that the Contract was subject to any security
interest. It has not sold, assigned or pledged the Contract to any Person other
than the Trust Fund, and prior to the transfer of the Contract by such Contract
Seller to the Trust Fund, it had good and marketable title thereto free and
clear of any encumbrance, equity, loan, pledge, charge, claim or security
interest and was the sole owner thereof with full right to transfer the Contract
to the Trust Fund.
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(m) NO DEFAULTS. As of the Cut-off Date, there was no default, breach,
violation or event permitting acceleration existing under the Contract and to
its knowledge, no event which, with notice and the expiration of any grace or
cure period, would constitute such a default, breach, violation or event
permitting acceleration under such Contract (except payment delinquencies
permitted by clause (a) above). The Contract Seller has not waived any such
default, breach, violation or event permitting acceleration.
(n) NO LIENS. As of the Closing Date, there are, to its knowledge, no
liens or claims which have been filed for work, labor or materials affecting the
Manufactured Home securing the Contract which are or may be liens prior to, or
equal or coordinate with, the lien of the Contract.
(o) EQUAL INSTALLMENTS. The Contract has a fixed Contract Rate and
provides for level monthly payments of principal and interest which fully
amortize the loan over its term. The scheduled monthly payment allocable to
interest on the Contract is calculated on the basis that each scheduled monthly
payment is applied on its Due Date, regardless of when it is actually made.
(p) ENFORCEABILITY. The Contract contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the collateral of the benefits of the
security.
(q) CONTRACT SCHEDULE. The information set forth in EXHIBIT A-1 (in the
case of Contracts sold by BankAmerica Housing Services) and EXHIBIT A-2 (in the
case of Contracts sold by Bank of America) is true and correct.
(r) ONE ORIGINAL. There is only one original executed Contract. Such
original Contract is in the custody of the Servicer on the Closing Date.
(s) LOAN-TO-VALUE RATIO. At the time of its origination, such Contract
had a Loan-to-Value Ratio (rounded to the nearest 1%) not greater than 100%.
(t) NOT REAL ESTATE. The related Manufactured Home is personal property
and is not considered or classified as part of the real estate on which it is
located under the laws of the jurisdiction in which it is located and was
personal property and was not considered or classified as part of the real
estate on which it was located under the laws of the jurisdiction in which it
was located at the time the related Contract was executed by the parties
thereto, and such Manufactured Home is, to such Contract Seller's knowledge,
free of damage and in good repair.
(u) NOTATION OF SECURITY INTEREST. If the related Manufactured Home is
located in a state in which notation of a security interest on the title
document is required or permitted to perfect such security interest, the title
document shows, or, if a new or replacement title document with respect to such
Manufactured Home is being applied for, such title document will be issued
within 180 days and will show, BankAmerica Housing Services as the holder of a
first-priority security interest in such Manufactured Home. If the related
Manufactured Home is located in a state in which the filing of a financing
statement or the making of a fixture filing under the UCC is
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required to perfect a security interest in manufactured housing, such filings
have been duly made and show BankAmerica Housing Services as the secured party.
Assuming consummation of the transactions contemplated herein the Trustee has
the same rights as the secured party of record would have (if such secured party
were still the owner of the Contract) against all Persons claiming an interest
in such Manufactured Home.
(v) SECONDARY MORTGAGE MARKET ENHANCEMENT ACT. The related Manufactured
Home is a "manufactured home" within the meaning of 42 United States Code,
Section 5402(6); BAFSB was a federally-chartered savings bank, as of the time of
each Contract's origination or purchase by BankAmerica Housing Services as
required under Section 3(a)(41)(A)(ii) of the Securities Exchange Act of 1934,
as amended.
(w) QUALIFIED MORTGAGE FOR REMIC. Each Contract is secured by a "single
family residence" within the meaning of Section 25(e)(10) of the Code. The fair
market value of the Manufactured Home securing each Contract was at least equal
to 80% of the adjusted issue price of the Contract at either (i) the time the
Contract was originated (determined pursuant to the REMIC Provisions) or (ii)
the time the Contract is transferred to the Trust Fund. Each Contract is a
"qualified mortgage" under Section 860G(a)(3) of the Code.
(x) STAMPING OF CONTRACTS. Within 90 days of the Closing Date, each
original Contract has been stamped with the following legend: "This Contract
has been assigned to The First National Bank of Chicago, as Trustee under the
Pooling and Servicing Agreement dated as of June 1, 1996 (among such Trustee,
Bank of America National Trust and Savings Association and BankAmerica Housing
Services, an unincorporated division of Bank of America, FSB) or to any
successor Trustee thereunder."
(y) ACTUARIAL CONTRACTS. Each Contract is an actuarial manufactured
housing installment loan agreement or a manufactured housing installment sales
contract.
(z) NO LAND HOME CONTRACTS. No Contract is secured, or intended to be
secured, in whole or in part by the lien of a mortgage or deed of trust creating
a first lien or an estate in fee simple in the real property.
(aa) NO FINANCING OF REAL PROPERTY. No Contract has financed any amount
in respect of real property.
(bb) MINIMUM AND MAXIMUM CONTRACT RATE. The Contract with the lowest
Contract Rate has a Contract Rate of 10.00% and the Contract with the highest
Contract Rate has a Contract Rate of 12.50%.
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SECTION 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACTS IN
THE AGGREGATE.
Each Contract Seller, jointly and severally, represents and warrants that:
(a) AMOUNTS. The aggregate principal amounts payable by Obligors under
the Contracts as of the Cut-off Date (including scheduled principal payments due
on or after the Cut-off Date but paid prior to the Cut-off Date) equal or exceed
the Cut-off Date Pool Principal Balance, and each Contract Rate is greater than
the Net Contract Rate.
(b) CHARACTERISTICS. The Contracts have the following characteristics as
of the Cut-off Date: (i) Contracts representing approximately 86% of the
Contracts by remaining principal balance are attributable to loans for purchases
of new Manufactured Homes, and approximately 14% thereof is attributable to
loans for purchases of used Manufactured Homes; (ii) not more than approximately
6.93% of the Contracts by remaining principal balance as of the Cut-off Date are
secured by Manufactured Homes located in any one state, not more than 1.00% of
the Contracts by remaining principal balance are secured by Manufactured Homes
located in an area with the same zip code, not more than 1.00% of the Contracts
by remaining principal balance are secured by Manufactured Homes located in the
same manufactured housing park, (iii) none of the Contracts by remaining
principal balance is secured by Manufactured Homes located in the State of
California; (iv) no Contract has a remaining maturity of less than five months
or more than 360 months; (v) no Contract was originated before November 1, 1995;
and (vi) the final scheduled payment date on the Contract with the latest
maturity is in April 2026.
(c) COMPUTER TAPE. The Computer Tape made available by the Servicer as of
the close of business on June 1, 1996 was accurate as of its date and includes a
description of the same Contracts that are described in the Contract Schedule.
(d) MARKING RECORDS. On or before the Closing Date, the related Contract
Seller will have caused the portions of the electronic master record of its
manufactured housing installment sales contracts and installment loan agreements
relating to the Contracts sold by it as of the Closing Date to be clearly and
unambiguously marked to indicate that such Contracts constitute part of the
Trust Fund and are owned by the Trust Fund in accordance with the terms of the
trust created hereunder.
(e) NO ADVERSE SELECTION. Except to ensure compliance with the
representations and warranties made in Sections 3.02 and 3.03, no selection
procedures have been intentionally employed to achieve an adverse effect in
selecting the Contracts.
SECTION 3.04. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACT FILES.
Each Contract Seller, for itself, represents and warrants that:
(a) POSSESSION. Immediately prior to the Closing Date, the Servicer will
have possession of each original Contract and the related Contract File (except
for any certificate of
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title that has not yet been returned from the appropriate public recording
office). There are and there will be no custodial agreements in effect
materially and adversely affecting the right of the related Contract Seller to
make, or to cause to be made, any delivery required hereunder.
(b) BULK TRANSFER LAWS. The transfer, assignment and conveyance of the
Contracts and the Contract Files by the related Contract Seller to the Trust
Fund as contemplated by this Agreement are not subject to the bulk transfer or
any similar statutory provisions in effect in any applicable jurisdiction.
SECTION 3.05. REPURCHASES OF CONTRACTS OR SUBSTITUTION OF CONTRACTS FOR
BREACH OF REPRESENTATIONS AND WARRANTIES.
(a) Each Contract Seller shall either (i) repurchase a Contract sold by it
to the Trust Fund at such Contract's Repurchase Price, or (ii) if such Contract
Seller is able to satisfy the conditions of Section 3.05(b), remove such
Contract from the Trust Fund and substitute therefor an Eligible Substitute
Contract in accordance with and subject to the limitations of Section 3.05(b),
in each case within 90 days after such Contract Seller becomes aware, or
receives written notice from the Servicer or the Trustee, of a breach of a
representation or warranty of such Contract Seller set forth in Section 3.02 or
3.03 of this Agreement that materially adversely affects the Trust Fund's
interest in such Contract, unless such breach has been cured; PROVIDED, HOWEVER,
that with respect to any Contract incorrectly described on the Contract Schedule
with respect to remaining principal balance, which a Contract Seller would
otherwise be required to repurchase pursuant to this Section 3.05, such Contract
Seller may, in lieu of repurchasing such Contract, deposit in the Certificate
Account not later than one Business Day after such Determination Date cash in an
amount sufficient to cure such deficiency or discrepancy; and FURTHER PROVIDED,
that with respect to a breach of a representation or warranty relating to the
Contracts in the aggregate and not to any particular Contract, a Contract Seller
may select Contracts to repurchase or substitute for such that, had such
Contracts not been included as part of the Contract Pool and after giving effect
to such substitution, if any, there would have been no breach of such
representation or warranty; and FURTHER PROVIDED, that in connection with any
Contract that a Contract Seller is required to repurchase, such Contract Seller
shall at its own expense deliver to the Trustee an opinion of counsel to the
effect that the repurchase of such Contract will not cause the Trust Fund to
fail to qualify as a REMIC at any time any Certificate is outstanding under then
applicable REMIC Provisions, be deemed a contribution to the Trust Fund after
the Startup Day or cause any "prohibited transaction," in each case, that will
result in the imposition of a tax under the applicable REMIC Provisions. It is
understood and agreed that the obligation of either Contract Seller to
repurchase or substitute for any Contract sold by it as to which a breach of a
representation or warranty set forth in Section 3.02 or 3.03 of this Agreement
has occurred and is continuing shall constitute the sole remedy respecting such
breach available to the Certificateholders, the Trust Fund or the Trustee;
PROVIDED, HOWEVER, that such Contract Seller shall defend and indemnify the
Trustee, the Certificate Administrator, the Trust Fund and the
Certificateholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or suffered by any of them as a result of third-party claims
arising out of any breach of a representation or warranty set
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forth in Section 3.02(c), (d), (g), (h) or (w) of this Agreement.
Notwithstanding any other provision of this Agreement, the obligation of either
Contract Seller under this Section 3.05 shall not terminate upon an Event of
Default.
Notwithstanding any other provision of this Agreement to the contrary, any
amount received on or recovered with respect to repurchased Contracts or
Replaced Contracts during or after the month of repurchase shall be the property
of the related Contract Seller and need not be deposited in the Certificate
Account.
Notwithstanding the foregoing, no Contract Seller shall deposit cash into
the Certificate Account pursuant to this Section 3.05 after the three-month
period beginning on the Closing Date unless it shall first have obtained an
Opinion of Counsel to the effect that such deposit will not give rise to any tax
under Section 86OF(a) (1) of the Code or Section 86OG(d) of the Code. Any such
deposit shall not be invested.
The Trustee shall have no obligation to pay any taxes pursuant to this
Section 3.05, other than from moneys provided to it by either Contract Seller or
from moneys held therefor pursuant to Section 4.17. The Trustee shall be deemed
conclusively to have complied with this Section 3.05 if it follows the
directions of the Servicer required to be provided in the preceding paragraph.
For reasons of administrative convenience in servicing of the Contracts,
notwithstanding the above provisions of this Section 3.05(a), no Contract Seller
shall be required to repurchase or substitute for any Contract relating to a
Manufactured Home located in any jurisdiction on account of a breach of the
representation or warranty contained in Section 3.02(j) or (u) of this Agreement
solely on the basis of failure by the related Contract Seller to cause notations
to be made on any document of title relating to any such Manufactured Home or to
execute any transfer instrument (including any UCC-3 assignments) relating to
any such Manufactured Home (other than a notation or a transfer instrument
necessary to show such Contract Seller as lienholder or legal title holder)
unless (i) a court of competent jurisdiction has adjudged that, because of such
failure, the Trustee does not have a perfected first-priority security interest
in such related Manufactured Home, or (ii) (A) the Servicer has received written
advice of counsel to the effect that a court of competent jurisdiction has held
that, solely because of a substantially similar failure on the part of a pledgor
or assignor of manufactured housing contracts (who has perfected the assignment
or pledge of such contracts), a perfected first-priority security interest was
not created in favor of the pledgee or assignee (as the case may be) in a
related manufactured home which is located in such jurisdiction and which is
subject to the same laws regarding the perfection of security interests therein
as apply to Manufactured Homes located in such jurisdiction, and (B) the
Servicer shall not have completed all appropriate remedial action with respect
to such Manufactured Home within 90 days after receipt of such written advice.
Any such advice shall be from counsel selected by the Servicer on a
nondiscriminatory basis from among the counsel used by the Servicer in its
general business in the jurisdiction in question. The Servicer shall have no
obligation on an ongoing basis to seek any advice with respect to the matters
described in clause (ii) above. However, the Servicer shall seek advice with
respect to such matters whenever information comes to the attention of its
general counsel which causes
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such general counsel to determine that a holding of the type described in clause
(ii)(A) might exist. If any counsel selected by the Servicer informs the
Servicer that no holding of the type described in clause (ii)(A) exists, such
advice shall be conclusive and binding on the parties with respect to the
applicable date and jurisdiction.
(b) On or prior to the date that is the second anniversary of the Closing
Date, either Contract Seller, at its election, may substitute a Contract for any
Contract that it is otherwise obligated to repurchase pursuant to Section
3.05(a) (such Contract being referred to as the "Replaced Contract") upon
satisfaction of the following conditions:
(i) the Contract to be substituted for the Replaced Contract is an
Eligible Substitute Contract and the related Contract Seller delivers an
Officer's Certificate, substantially in the form of EXHIBIT E, to the Trustee
certifying that such Contract is an Eligible Substitute Contract, describing in
reasonable detail how such Contract satisfies the definition of the term
"Eligible Substitute Contract" (as to satisfaction of representations and
warranties, such description shall be that such Contract satisfies such
representations and warranties) and certifying that the Contract File for such
Contract is in the possession of the Servicer;
(ii) the related Contract Seller shall have delivered to the Trustee
evidence of filing with the appropriate office in California of a UCC-1
financing statement executed by such Contract Seller as debtor and naming the
Trustee as secured party and listing such Contract as collateral;
(iii) the related Contract Seller shall have delivered to the
Trustee an Opinion of Counsel (a) to the effect that the substitution of such
Contract for such Replaced Contract will not cause the Trust Fund to fail to
qualify as a REMIC at any time any Certificate is outstanding under then
applicable REMIC Provisions, be deemed a contribution to the Trust Fund after
the Startup Day or cause any "prohibited transaction," in each case, that will
result in the imposition of a tax under the applicable REMIC Provisions, and (b)
to the effect that no filing or other action other than the filing of financing
statements on Form UCC-1 with the Secretary of State of the State of California,
naming such Contract Seller as debtor and the Trustee as secured party as
required by Section 3.05(a) of this Agreement and the filing of continuation
statements as required by Section 2.02(a), is necessary to perfect as against
third parties the conveyance of the substitute Contract by such Contract Seller
to the Trustee; and
(iv) if the Scheduled Principal Balance of such Replaced Contract is
greater than the Scheduled Principal Balance of such Contract, the related
Contract Seller shall have deposited in the Certificate Account the amount of
such excess (which amount shall be deemed a Principal Prepayment on such
Contract) and shall have included in the Officer's Certificate required by
clause (i) above a certification that such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such Contract
to, and delete such Replaced Contract from, the Contract Schedule (or cause such
addition and deletion to be accomplished). Such substitution shall be effected
prior to the first Determination Date that
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occurs more than 90 days after the Contract Seller becomes aware or receives
written notice from the Servicer or the Trustee, of the breach referred to in
Section 3.05(a).
(c) Promptly after the repurchase referred to in Section 3.05(a) or the
substitution referred to in Section 3.05(b), the Trustee shall execute such
documents as are presented to it by the related Contract Seller and are
reasonably necessary to reconvey the repurchased Contract or Replaced Contract,
as the case may be, to the related Contract Seller.
(d) Notwithstanding anything in this Section 3.05 to the contrary, in the
event any Opinion of Counsel referred to in this Section 3.05 indicates that a
repurchase or substitution, as the case may be, of a Contract will result in the
imposition of a tax under the applicable REMIC Provisions with respect to
"prohibited transactions," or deemed a contribution to the REMIC after the
"start-up day," the related Contract Seller shall not be required to repurchase
or substitute the Contract to which such Opinion of Counsel relates unless and
until the Servicer has determined there is an actual or imminent default with
respect thereto or that the defect or breach giving rise to the repurchase or
substitution obligation adversely affects the enforceability of such Contract.
SECTION 3.06. GENERAL.
(a) It is understood and agreed that the representations and warranties in
this Article III hereof shall remain operative and in full force and effect,
shall survive the transfer and conveyance of the Contracts by the Contract
Sellers to the Trustee and shall inure to the benefit of the Trustee.
(b) Any cause of action against either Contract Seller relating to or
arising out of the breach of any of its respective representations and
warranties made in this Article III shall accrue as to any Contract upon (i)
discovery of such breach by either Contract Seller or notice thereof by the
Trustee or Servicer to such Contract Seller, (ii) failure by the related
Contract Seller to cure such breach, and (iii) demand upon the related Contract
Seller by the Trustee for all amounts payable in respect of such Contract under
this Agreement.
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ARTICLE IV
ADMINISTRATION AND SERVICING
OF CONTRACTS
SECTION 4.01. RESPONSIBILITY FOR CONTRACT ADMINISTRATION AND SERVICING.
BankAmerica Housing Services hereby agrees to act as Servicer under this
Agreement. The Certificateholders by their acceptance of the Certificates
consent to BankAmerica Housing Services acting as Servicer. The Servicer shall
service and administer the Contracts and, subject to the terms of this
Agreement, shall have full power and authority to do any and all things which it
may deem necessary or desirable in connection with such servicing and
administration. Subject to Section 4.02, without limiting the generality of the
foregoing, the Servicer hereby is authorized and empowered, when the Servicer
believes it appropriate in its best judgment, to execute and deliver, on behalf
of the Certificateholders and the Trust Fund or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Contracts
and with respect to the Manufactured Homes. The Trustee shall furnish the
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to service and administer the Contracts. The
relationship of the Servicer (and of any successor to the Servicer as servicer
under this Agreement) to the Trustee under this Agreement is intended by the
parties to be that of an independent contractor and not that of a joint
venturer, partner or agent of the Trustee.
SECTION 4.02. STANDARD OF CARE.
In managing, administering, servicing and making collections on the
Contracts pursuant to this Agreement, the Servicer will, consistent with the
terms of this Agreement and applicable law, act with reasonable care, using that
degree of skill and care that it exercises with respect to similar manufactured
housing contracts owned and/or serviced by it, but in no event using a degree of
skill and care that is lower than that used generally in the servicing industry
for such manufactured housing contracts; PROVIDED, HOWEVER, that notwithstanding
the foregoing, the Servicer shall not release or waive the right to collect the
unpaid balance on any Contract. Notwithstanding anything to the contrary
contained in this Agreement, no provision of this Agreement shall be construed
so as to require the Servicer to take any action or fail to take any action in
respect of a Contract which action or failure violates applicable law.
SECTION 4.03. RECORDS.
The Servicer, during the period it is servicer hereunder, shall maintain
such books of account and other records as will enable the Trustee (if the
Trustee so elects in its discretion) to determine the status of each Contract.
Without limiting the generality of the preceding sentence, the Servicer shall
keep such records in respect of Liquidation Expenses as will enable the Trustee
(if the Trustee so elects in its discretion) to determine that the correct
amount of Net Liquidation Proceeds in respect of a Liquidated Contract has been
deposited in the Certificate Account.
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SECTION 4.04. INSPECTION.
(a) At all times during the term hereof, the Servicer shall afford the
Trustee and its authorized agents reasonable access during normal business hours
to the Servicer's records relating to the Contracts and will cause its personnel
to assist in any examination of such records by the Trustee or any of its
authorized agents. The examination referred to in this Section 4.04 will be
conducted in a manner which does not interfere unreasonably with the Servicer's
normal operations or customer or employee relations. Without otherwise limiting
the scope of the examination which the Trustee may make, the Trustee or its
authorized agents, using generally accepted audit procedures, may in their
discretion verify the status of each Contract and review the records relating
thereto for conformity to Monthly Reports prepared pursuant to Article V and
compliance with the standards represented to exist as to each Contract in this
Agreement.
(b) At all times during the term hereof, the Servicer shall keep available
a copy of the Contract Schedule at its principal executive office for inspection
by Certificate Owners.
SECTION 4.05. ESTABLISHMENT OF AND DEPOSITS IN CERTIFICATE ACCOUNTS.
On or before the Closing Date, the Trustee shall have established, and
thereafter shall maintain, a Certificate Account which is an Eligible Account,
in the form of a segregated trust account titled "BankAmerica Manufactured
Housing Contract Trust, Senior/Subordinate Pass-Through Certificates, Series
1996-1, Certificate Account in trust for the Trustee as trustee for the benefit
of the Certificateholders." As of the Closing Date, the Certificate Account
shall be a segregated trust account established at The First National Bank of
Chicago and shall be invested in the Trustee's Corporate Trust Short-Term
Investment Fund (as long as such fund is an Eligible Investment) or other
similar Eligible Investment selected by the Trustee. Eligible Investments shall
mature or, in the case of a money market fund, be redeemed not later than the
Business Day immediately preceding the Distribution Date next following the date
of such investment (except that, if such Eligible Investment is an obligation of
the institution that maintains the Certificate Account, then such Eligible
Investments shall mature or, in the case of a money market fund, be redeemed not
later than such Distribution Date), and shall not be sold or disposed of prior
to its maturity. All such Eligible Investments shall be made in the name of the
Trustee, as trustee for the benefit of the Certificateholders. Without limiting
the generality of the foregoing, the Trustee shall select obligations for the
investment of the Certificate Account from among the investments specified in
clauses (a) and (b) of the definition of "Eligible Investments." The Trustee
shall select such Eligible Investments, which shall mature as provided above, in
such manner as to achieve the following objectives in the order stated: (1)
preservation of principal values; and (2) maximization of income.
All net income and gain realized from any such investments, to the extent
provided by this Agreement, shall be added to the Certificate Account.
The Servicer shall deposit in the Certificate Account, as promptly as
practicable (but not later than the close of business of the second Business
Day) following receipt thereof:
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(1) All amounts received from Obligors with respect to principal of and
interest on the Contracts (including Excess Contract Payments);
(2) All Net Liquidation Proceeds;
(3) All amounts required to be deposited by a Contract Seller pursuant to
Sections 3.05(a) and (b);
(4) All Monthly Advances pursuant to Section 5.01;
(5) Any proceeds of Hazard Insurance Policies pursuant to Section 4.11 and
any amounts in respect of indemnification pursuant to Section 7.03; and
(6) All amounts required to be withdrawn from an REO Account and deposited
in the Certificate Account in accordance with Section 4.17.
SECTION 4.06. PAYMENT OF TAXES.
If the Servicer becomes aware of the nonpayment by an Obligor of a personal
property tax or other tax or charge which may result in a lien upon a
Manufactured Home prior to, or equal to or coordinate with, the lien of the
related Contract, the Servicer, consistent with Section 4.02, shall take action,
including the payment of such taxes or charges to avoid the attachment of any
such lien. If the Servicer shall have paid any such personal property tax or
other tax or charge directly on behalf of an Obligor, the Servicer shall seek
reimbursement therefor only from the related Obligor (except as provided in the
last sentence of this Section 4.06) and may separately add such amount to the
Obligor's obligation as provided by the Contract, but, for the purposes of this
Agreement, may not add such amount to the remaining principal balance of the
Contract. If the Servicer shall have repossessed a Manufactured Home on behalf
of the Certificateholders and the Trustee, the Servicer shall pay the amount of
any such tax or charge arising during the time such Manufactured Home is in the
Servicer's possession, unless the Servicer is contesting in good faith such tax
or charge or the validity of the claimed lien on such Manufactured Home. If the
Obligor does not reimburse the Servicer for payment of such taxes or charges
pursuant to this Section 4.06 and the related Contract is liquidated after a
default, the Servicer shall be reimbursed for its payment of such taxes or
charges out of the related Liquidation Proceeds.
SECTION 4.07. ENFORCEMENT.
(a) The Servicer, consistent with Section 4.02, shall act with respect to
the Contracts in such manner as will maximize the receipt of principal and
interest on such Contracts.
(b) The Servicer shall sue to enforce or collect upon Contracts, in its
own name, if possible, or as agent for the Trust Fund. If the Servicer elects
to commence a legal proceeding to enforce a Contract, the act of commencement
shall be deemed to be an automatic assignment of the Contract to the Servicer
for purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Contract on the ground
that it is
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not a real party in interest or a holder entitled to enforce the Contract, the
Trustee on behalf of the Certificateholders shall, at the Servicer's expense,
take such steps as the Servicer deems necessary to enforce the Contract,
including bringing suit in its name or the names of the Certificateholders. If
there has been a recovery of attorneys' fees in favor of the Servicer or the
Trust Fund in an action involving the enforcement of a Contract, the Servicer
shall be reimbursed out of such recovery for its out-of-pocket attorney's fees
and expenses incurred in such enforcement action.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Contract in accordance with Section 4.02.
In exercising recourse rights, the Servicer is authorized on the Trustee's
behalf to reassign the Contract or to resell the related Manufactured Home to
the Person against whom recourse exists at the price set forth in the document
creating the recourse.
(d) The Servicer may grant to the Obligor on any Contract any rebate,
refund or adjustment out of the Certificate Account that is required because of
an overpayment in connection with the partial prepayment or prepayment in full
of the Contract or otherwise. The Servicer may rescind, cancel or make material
modifications of the terms of any Contract (including modifying the amounts and
due dates of scheduled monthly payments); PROVIDED that, unless required by
applicable law or to bring Contracts into conformity with the representations
and warranties contained in Article III, the Servicer will not permit any
rescission or cancellation of any Contract or any material modification of a
Contract other than in connection with a default or an imminent default on such
Contract unless the Servicer obtains an Opinion of Counsel to the effect that
such modification will not cause the Trust Fund to fail to qualify as a REMIC or
result in the imposition of taxes on the Trust Fund under the REMIC Provisions.
SECTION 4.08. TRANSFER OF CERTIFICATE ACCOUNT.
The Trustee may transfer the Certificate Account to a different depository
institution from time to time, so long as the Certificate Account remains an
Eligible Account. The Trustee shall give notice of any transfer of the
Certificate Account to each Rating Agency prior to such transfer.
SECTION 4.09. MAINTENANCE OF HAZARD INSURANCE POLICIES.
(a) Except as otherwise provided in subsection (b) of this Section 4.09,
the Servicer shall cause to be maintained with respect to each Contract one or
more Hazard Insurance Policies which provide, at a minimum, the same coverage as
a standard form fire and extended coverage insurance policy that is customary
for manufactured housing, issued by a company authorized to issue such policies
in the state in which the Manufactured Home is located, and in an amount which
is not less than the maximum insurable value of such Manufactured Home or the
principal balance of the related Contract, whichever is less; PROVIDED that such
Hazard Insurance Policies may provide for customary deductible amounts, and
FURTHER PROVIDED that the amount of coverage provided by each Hazard Insurance
Policy shall be sufficient to avoid the application of any co-insurance clause
contained therein. If a Manufactured Home is located within a federally
designated special flood hazard area, the Servicer shall, to the extent required
by applicable law or
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regulation, also cause flood insurance to be maintained, which coverage shall be
at least equal to the minimum amount specified in the preceding sentence or such
lesser amount as may be available under the federal flood insurance program.
Each Hazard Insurance Policy caused to be maintained by the Servicer shall
contain a standard loss payee clause in favor of the Servicer and its successors
and assigns. If any Obligor is in default in the payment of premiums on its
Hazard Insurance Policy or Policies, the Servicer shall pay such premiums out of
its own funds, and may add separately such premium to the Obligor's obligation
as provided by the Contract, but may not add such premium to the remaining
principal balance of the Contract for purposes of this Agreement. If the
Obligor does not reimburse the Servicer for payment of such premiums and the
related Contract is liquidated after a default, the Servicer shall be reimbursed
for its payment of such premiums out of the related Liquidation Proceeds.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
subsection (a) of this Section 4.09, and shall, to the extent that the related
Contract does not require the Obligor to maintain a Hazard Insurance Policy with
respect to the related Manufactured Home, maintain one or more blanket insurance
policies covering losses as provided in subsection (a) of this Section 4.09
resulting from the absence or insufficiency of individual Hazard Insurance
Policies. Any such blanket policy shall be substantially in the form that is
the industry standard for blanket insurance policies issued to cover
Manufactured Homes and in the amount sufficient to cover all losses on the
Contracts. The Servicer shall pay, out of its own funds, the premium for such
policy on the basis described therein and shall deposit in the Certificate
Account, on the Business Day next preceding the Determination Date following the
Collection Period in which the insurance proceeds from claims in respect of any
Contracts under such blanket policy are or should have been received, the
deductible amount with respect to such claims. The Servicer shall not, however,
be required to deposit any deductible amount with respect to claims under
individual Hazard Insurance Policies maintained pursuant to subsection (a) of
this Section 4.09.
(c) If the Servicer shall have repossessed a Manufactured Home on behalf
of the Trustee, the Servicer shall either (i) maintain at its expense a Hazard
Insurance Policy with respect to such Manufactured Home, except that the
Servicer shall be responsible for depositing any deductible amount with respect
to all claims under individual Hazard Insurance Policies, or (ii) indemnify the
Trust Fund against any damage to such Manufactured Home prior to resale or other
disposition that would have been covered by such Hazard Insurance Policy.
(d) Any cost incurred by the Servicer in maintaining any of the foregoing
insurance, for the purpose of calculating monthly distributions to
Certificateholders, shall not be added to the amount owing under the Contract,
notwithstanding that the terms of the Contract so permit. The Servicer shall
not be entitled to reimbursement from either Contract Seller, the Trustee or the
Certificateholders for such costs. Such costs (other than the cost of the
blanket policy) shall only be recovered out of later payments by the Obligor for
such premiums or, if the related Contract is liquidated after a default, out of
the related Liquidation Proceeds.
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SECTION 4.10. FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE.
The Servicer shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies acceptable to FNMA and FHLMC, on all officers, employees
or other persons acting in any capacity with regard to the Contracts to handle
funds, money, documents and papers relating to the Contracts. Any such fidelity
bond and errors and omissions insurance shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. No provision of this Section 4.10
requiring such fidelity bond and errors and omissions insurance shall diminish
or relieve the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be in an amount as is customary for servicers that service a portfolio of
manufactured housing installment sales contracts of $100 million or more and
that are generally acceptable as servicers to institutional investors. On or
before April 1 of every year, the Servicer shall cause to be delivered to the
Trustee a certified true copy of such fidelity bond and insurance policy and a
statement from the surety and the insurer that such fidelity bond or insurance
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Trustee.
SECTION 4.11. COLLECTIONS UNDER HAZARD INSURANCE POLICIES; CONSENT TO
TRANSFERS OF MANUFACTURED HOMES; ASSUMPTION AGREEMENTS.
(a) In connection with its activities as administrator and servicer of the
Contracts, the Servicer agrees to present, on behalf of itself, the Trustee and
the Certificateholders, claims to the insurer under any Hazard Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Hazard Insurance Policies or any blanket
policies obtained pursuant to Section 4.09(b). Any amounts collected by the
Servicer under any such Hazard Insurance Policies shall be deposited in the
Certificate Account pursuant to Section 4.05, except to the extent they are
applied to the restoration of the related Manufactured Home or released to the
related Obligor in accordance with the normal servicing procedures of the
Servicer.
(b) In connection with any transfer of ownership of a Manufactured Home by
an Obligor to a Person, the Servicer shall consent to any such transfer and
permit the assumption by such Person of the Contract related to such
Manufactured Home, PROVIDED that (i) such Person, in the judgment of the
Servicer, meets the Servicer's underwriting standards then in effect, (ii) such
Person enters into an assumption agreement, (iii) the Servicer determines that
permitting such assumption by such Person will not materially increase the risk
of nonpayment of such Contract and (iv) such action will not adversely affect or
jeopardize any coverage under any insurance policy required by this Agreement.
In the event the Servicer determines that the conditions of the proviso of the
preceding sentence have not been fulfilled, then the Servicer shall withhold its
consent to any such transfer, but only to the extent permitted under the
Contract and applicable law and governmental regulations and only to the extent
that such action will not adversely affect or jeopardize any coverage under any
insurance policy required by this Agreement. In connection with any such
assumption, the rate of interest borne by, and all other material terms of, the
related Contract shall not be changed.
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(c) In any case in which a Manufactured Home is to be conveyed to a Person
by an Obligor, and such Person is to enter into an assumption agreement or
modification agreement or supplement to the Contract in accordance with Section
4.11(b) or Section 4.07(d), upon the closing of such conveyance, the Servicer
shall cause the originals of the assumption agreement, the release (if any), or
the modification or supplement to the Contract to be deposited with the Contract
File for such Contract. Any fee collected by the Servicer for entering into an
assumption or substitution of liability agreement with respect to such Contract
will be retained by the Servicer as additional servicing compensation.
SECTION 4.12. REALIZATION UPON DEFAULTED CONTRACTS.
Subject to applicable law, the Servicer shall repossess, foreclose upon or
otherwise comparably convert the ownership of Manufactured Homes securing all
Contracts that come into default and which the Servicer believes in its good
faith business judgment will not be brought current. Subject to Section 4.17,
the Servicer shall manage, conserve and protect such Manufactured Homes for the
purposes of their prompt disposition and sale, and shall dispose of such
Manufactured Homes on such terms and conditions as it deems in the best
interests of the Certificateholders. In connection with such activities, the
Servicer shall follow such practices and procedures as are consistent with
Section 4.02.
SECTION 4.13. COSTS AND EXPENSES.
Except as otherwise expressly provided herein, all costs and expenses
incurred by the Servicer in carrying out its duties under this Agreement,
including all fees and expenses incurred in connection with the enforcement of
Contracts (including enforcement of defaulted Contracts and repossessions of
Manufactured Homes securing such Contracts), shall be paid by the Servicer, and
the Servicer shall not be entitled to reimbursement hereunder, except to the
extent such reimbursement is specifically provided for in this Agreement.
Notwithstanding the foregoing, the Servicer shall be reimbursed out of the
Liquidation Proceeds of a defaulted Contract for Liquidation Expenses incurred
by it in realizing upon the related Manufactured Home, including, but not
limited to: (i) costs of refurbishing and securing such Manufactured Home;
(ii) transportation expenses incurred in moving the Manufactured Home;
(iii) reasonable legal fees and expenses of outside counsel; and (iv) sales
commissions paid to Persons that are not Affiliates of the Servicer. The
Servicer shall not incur any Liquidation Expenses unless it determines in its
good faith business judgment that incurring such expenses will increase the Net
Liquidation Proceeds from such Manufactured Home.
SECTION 4.14. TRUSTEE TO COOPERATE.
Upon payment in full of any Contract, the Servicer will notify the Trustee
on the next Distribution Date by a certificate of a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Certificate Account pursuant to Section 4.05 have been
deposited). The Servicer is authorized to execute an instrument in satisfaction
of such Contract and to do such other acts and execute such other documents as
the Servicer deems
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necessary to discharge the Obligor thereunder and eliminate the security
interest in the Manufactured Home. The Servicer shall determine when a Contract
has been paid in full. To the extent insufficient payments are received on a
Contract mistakenly determined by the Servicer to be prepaid or paid in full and
satisfied, the shortfall shall be paid by the Servicer out of its own funds by
deposit into the Certificate Account. Upon request of a Servicing Officer, the
Trustee shall, at the expense of the Servicer, perform such acts as are
reasonably requested by the Servicer (including the execution of documents) and
otherwise cooperate with the Servicer in the enforcement of rights and remedies
with respect to Contracts.
SECTION 4.15. SERVICING AND OTHER COMPENSATION.
The Servicer, as compensation for its activities hereunder including the
payment of fees and expenses of the Trustee, the Certificate Administrator and
the Paying Agent pursuant to Section 9.05, shall be entitled to receive on each
Distribution Date the Monthly Servicing Fee and Repossession Profits pursuant to
Section 5.03.
Additional servicing compensation in the form of Late Payment Fees or
Extension Fees and any transfer of equity or assumption fees shall be retained
by the Servicer. The Servicer shall not be reimbursed for its costs and
expenses in servicing the Contracts except as otherwise expressly provided
herein.
No transfer, sale pledge or other disposition of the Servicer's right to
receive all or any portion of the Monthly Servicing Fee shall be made, and any
such attempted transfer, sale, pledge or other disposition shall be void, unless
such transfer is made to a successor Servicer in connection with the assumption
by such successor Servicer of the duties hereunder pursuant to Section 7.07 and
all (and not a portion) of the Monthly Servicing Fee is transferred to such
successor Servicer.
SECTION 4.16. CUSTODY OF CONTRACTS.
(a) Subject to the terms and conditions of this Section 4.16, the Servicer
agrees to act as custodian of the Contract Files for the benefit of the
Certificateholders and the Trust Fund. The Certificateholders by their
acceptance of the Certificates, consent to the Servicer acting as custodian, and
the Servicer agrees to maintain the Contract Files as custodian therefor.
(b) The Servicer agrees to maintain the related Contract Files at its
offices where they are presently maintained, or at such other offices of the
Servicer in the State of California as shall from time to time be identified to
the Trustee by ten days' prior written notice. The Servicer may temporarily
move individual Contract Files or any portion thereof without notice as
necessary to conduct collection and other servicing activities in accordance
with its customary practices and procedures.
(c) As custodian, the Servicer shall have and perform the following powers
and duties:
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(i) hold the Contract Files on behalf of the Certificateholders
and the Trustee, maintain accurate records pertaining to each Contract to
enable it to comply with the terms and conditions of this Agreement,
maintain a current inventory thereof and conduct annual physical
inspections of Contract Files held by it under this Agreement;
(ii) implement policies and procedures in writing and signed by a
Servicing Officer, with respect to persons authorized to have access to the
Contract Files on the Servicer's premises and the receipting for Contract
Files taken from their storage area by an employee of the Servicer for
purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining
custody of the Contract Files on behalf of the Certificateholders and the
Trustee.
(d) In performing its duties under this Section 4.16, the Servicer agrees
to act in accordance with the standard of care set forth in Section 4.02. The
Servicer shall promptly report to the Trustee any failure by it to hold the
Contract Files as herein provided, and shall promptly take appropriate action to
remedy any such failure. In acting as custodian of the Contract Files, the
Servicer further agrees not to assert any beneficial ownership interests in the
Contracts or the Contract Files. The Servicer agrees to indemnify the
Certificateholders and the Trustee for any and all liabilities, obligations,
losses, damages, payments, costs or expenses of any kind whatsoever which may be
imposed on, incurred or asserted against the Certificateholders and the Trustee
as the result of any act or omission by the Servicer relating to the maintenance
and custody of the Contract Files; PROVIDED, HOWEVER, that the Servicer will not
be liable for any portion of any such amount resulting from the negligence or
willful misconduct of any other Person.
SECTION 4.17. REMIC COMPLIANCE.
The parties intend that the Trust Fund formed hereunder shall constitute,
and that the affairs of the Trust Fund shall be conducted so as to qualify it
as, a "real estate mortgage investment conduit" as defined in, and in accordance
with, the REMIC Provisions, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the
Servicer shall, to the extent permitted by applicable law, act as agent, and is
hereby appointed to act as agent, of the Trust Fund and shall on behalf of the
Trust Fund: (a) prepare, file and sign, or cause to be prepared, filed and
signed, all required federal and state tax and information returns for the Trust
Fund, including, but not limited to, Form 1066 and Schedule Q thereto, using a
calendar year as the taxable year for the Trust Fund when and as required by the
REMIC Provisions and other applicable federal income tax laws; (b) make an
election, on behalf of the Trust Fund, to be treated as a REMIC on the Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (c) prepare
and forward, or cause to be prepared and forwarded, to the Certificateholders
and the Internal Revenue Service all information reports as and when required to
be provided to them in accordance with the REMIC Provisions; (d) if the filing
or distribution of any documents of an administrative nature not addressed in
clauses (a) through (c) of this Section 4.17 is then required by the REMIC
Provisions in order to maintain the status of the Trust Fund as a REMIC,
prepare, file and sign or distribute, or cause to be prepared
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and filed and signed or distributed, such documents with or to such Persons when
and as required by the REMIC Provisions; (e) serve as tax matters person for the
Trust Fund pursuant to Treasury Regulations Section 1.860F-4(d) or as
attorney-in-fact and agent for any Person that is the tax matters person if the
Servicer determines, in its sole discretion, that it is not permitted by
applicable law to serve as the tax matters person; (f) perform or cause the
Paying Agent to perform all withholding obligations imposed under federal, state
or local laws with respect to distributions to Certificateholders, including any
"back-up" withholding or withholding of taxes on distributions to
Certificateholders that are Foreign Persons; (g) perform its obligations so as
to maintain the Trust Fund's status as a REMIC under the REMIC provisions and to
prevent the imposition of any federal, state or local income, "prohibited
transaction," contribution or other tax on the Trust Fund; and (h) within thirty
days of the Closing Date, furnish or cause to be furnished to the Internal
Revenue Service, on Form 8811 or as otherwise required by the Code, the name,
title, address and telephone of the person that the Holders of the Certificates
may contact for tax information relating thereto, together with such additional
information as may be required by such Form, and update such information at the
time or times in the manner required by the Code for the Trust Fund. If the
Servicer determines, in its sole discretion, that it is not permitted by
applicable law to perform any of the duties in the preceding sentence, the
Trustee shall carry out such duties, except for the duty to serve as tax matters
person, pursuant to the instructions of the Servicer and shall be compensated
for such services pursuant to Section 9.05. Further, the Servicer shall sign
all federal and state tax and information returns for the Trust Fund and any
other administrative documents prepared by the Servicer under clause (d) of this
Section 4.17. The Holders of the Class R Certificates, by purchasing such Class
R Certificates, shall be deemed to consent to the appointment of the Servicer as
the tax matters person for the Trust Fund or, if the Servicer determines, in its
sole discretion, that it cannot act in such capacity, to the appointment of the
Holder holding the largest Ownership Interest in the outstanding Class R
Certificates as the tax matters person for the Trust Fund. If the Holder of the
largest Ownership Interest in the outstanding Class R Certificates is appointed
as the tax matters person, such Holder shall be deemed to consent, with respect
to its capacity as tax matters person, to the appointment of the Servicer as its
attorney-in-fact and agent. The Holders of the Class R Certificates, by
purchasing such Class R Certificates, shall be further deemed to agree to
execute any documents required to give effect to the provisions in the
immediately two preceding sentences. The Servicer shall not intentionally take
any action (or intentionally direct the Trustee to take any action) or
intentionally omit to take any action (or intentionally omit to direct the
Trustee to take any action) if, in taking or omitting to take such action, the
Servicer knows that such action or omission (as the case may be) would cause the
termination of the REMIC status of the Trust Fund or result in the imposition of
taxes on "prohibited transactions" of the Trust Fund as defined in Section 860F
of the Code or result in the imposition of taxes on contributions to the Trust
Fund after the Startup Day pursuant to Section 860G(d) of the Code; PROVIDED,
HOWEVER, that the Servicer shall not be required to take any action in this
regard or otherwise to take any action that the Servicer in good faith believes
to be inconsistent with any other provision of this Agreement. Each Contract
Seller and the Trustee shall cooperate with the Servicer or its agent for such
purpose in supplying any information within their control (other than any
confidential information) that is necessary to enable the Servicer to perform
its duties under this Section 4.17.
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Each Holder of a Class R Certificate, by purchasing such Class R
Certificate, agrees to give the Servicer written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon becoming the Holder of
such Class R Certificate, if it is, or is holding such Class R Certificate on
behalf of, a "pass-through interest holder."
In the event that any tax, including interest, penalties, additional
amounts or additions to tax (a "Tax"), is imposed on the Trust Fund, such Tax
shall be charged against amounts otherwise required to be distributed to the
Holders of the Class R Certificates. The Trustee is hereby authorized to
retain, or cause the Paying Agent to retain, from amounts otherwise required to
be distributed to the Holders of the Class R Certificates sufficient funds to
pay or provide for the payment of, and to actually pay, or cause the Paying
Agent to pay, such Tax as is legally owed by the Trust Fund (but such
authorization shall not prevent the Servicer from contesting any such Tax in
appropriate proceedings, and withholding payment of such Tax, if permitted by
law, pending the outcome of such proceedings). To the extent that sufficient
amounts cannot be so retained to pay or provide for the payment of any tax
imposed on gain realized from any prohibited transaction (as defined in the
REMIC Provisions), the Trustee is hereby authorized to and shall segregate, into
a separate non-interest-bearing account, the net income from such prohibited
transactions and pay, or cause the Paying Agent to pay, such Tax. In the event
any (i) amounts initially retained from amounts required to be distributed to
the Holders of the Class R Certificates and (ii) income so segregated and
applied towards the payment of such Tax shall not be sufficient to pay such Tax
in its entirety, the amount of the shortfall shall be paid from funds in the
Certificate Account notwithstanding anything to the contrary contained herein.
To the extent any such segregated income or funds from the Certificate Account
are paid to the Internal Revenue Service, the Trustee shall retain, or cause to
be retained, an amount equal to the amount of such income or funds so paid from
future amounts otherwise required to be distributed to the Holders of the Class
R Certificates and shall deposit such retained amounts in the Certificate
Account for distribution to the Holders of the Regular Certificates.
Except as provided in Section 3.05 or this Section, the Trustee shall not,
and the Servicer shall not direct or otherwise instruct the Trustee to, sell any
Contract or any other asset of the Trust Fund unless either (i) it has received
an Opinion of Counsel to the effect that such sale will not result in the
imposition of taxes on "prohibited transactions" on the Trust Fund as defined in
Section 860F of the Code, or (ii) the proceeds of such sale, net of any related
taxes on "prohibited transactions" on the Trust Fund as defined in Section 860F
of the Code, will at least equal the purchase price of such Contract.
The Trust Fund shall not acquire any Manufactured Home except in
connection with a default or imminent default of a Contract. The Trust Fund
shall not acquire any other property (including personal property) unless the
Servicer obtains an Opinion of Counsel that such property qualifies as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
In the event that any Manufactured Home is acquired in a repossession (an
"REO Property"), the Servicer shall sell any REO Property within two years of
its acquisition by the Trust Fund, unless (i) the Servicer applies for an
extension of such two-year period pursuant to Sections 856(e)(3) and
860G(a)(8)(A) of the Code, in which case the Servicer shall sell such REO
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Property within the applicable extension period and (ii) at the request
of the Servicer, the Trustee seeks, and subsequently receives, an Opinion of
Counsel, addressed to the Trustee and the Servicer, to the effect that the
holding by the Trust Fund of such REO Property subsequent to two years after its
acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund as defined in Section 860F of the Code or cause
the Trust Fund to fail to qualify as a REMIC at any time that any Certificates
are outstanding. The Servicer shall manage, conserve, protect and operate each
REO Property solely for the purpose of its prompt disposition and sale in a
manner that does not cause any such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by the REMIC of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under the REMIC Provisions.
In connection with its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Certificateholders, rent the
same, or any part thereof, as the Servicer deems to be in the best interest of
the Servicer and the Certificateholders for the period prior to the sale of such
REO Property.
The Servicer shall segregate and hold all funds collected and received in
connection with the operation of any REO Property separate and apart from its
own funds and general assets and shall establish and maintain with respect to
each REO Property an account held in trust for the Trustee for the benefit of
the Certificateholders (each, an "REO Account"), which shall be an Eligible
Account and the funds therein shall be invested in Eligible Investments that
will mature not later than the Business Day preceding the applicable
Determination Date. The Servicer shall be entitled to retain or withdraw any
interest income paid on funds deposited in each REO Account by the depository.
The Servicer shall deposit, or cause to be deposited, on a daily basis in
each REO Account all revenues received with respect to operation of the related
REO Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of the REO Property. On or before each
Determination Date, the Servicer shall withdraw from each REO Account and
deliver to the Trustee for deposit into the Certificate Account the income from
the REO Property on deposit in the REO Account, net of its reasonable fees and
expenses.
The disposition of REO Property shall be carried out by the Servicer at
such price and upon such terms and conditions as the Servicer shall deem
necessary or advisable, as shall be normal and usual in its general servicing
activities.
The proceeds from the disposition of any REO Property, net of any
reimbursement to the Servicer as provided above, shall be deposited in the REO
Account and shall be deposited in the Certificate Account when the related
Contract becomes a Liquidated Contract.
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SECTION 4.18. MANAGEMENT OF REO PROPERTY.
(a) If the Trustee acquires any REO Property pursuant to Section 4.17, the
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection therewith as are consistent with the manner in which the Servicer
manages and operates similar property owned by the Servicer or any of its
Affiliates, all on such terms and for such period as the Servicer deems to be in
the best interests of Certificateholders, and, consistent therewith, shall
withdraw from the REO Account, to the extent of amounts on deposit therein with
respect to such REO Property, funds necessary for the proper operation,
management and maintenance of such REO Property, including:
(i) all insurance premiums due and payable in respect to such REO
Property;
(ii) all real estate taxes and assessments in respect to such REO
Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in (i) - (iii) above with
respect to such REO Property, the Servicer shall advance from its own funds such
amount as is necessary for such purposes if, but only if, the Servicer would
make such advances if the Servicer owned such REO Property and if in the
Servicer's judgment, the payment of such amounts will be recoverable from the
operation or sale of such REO Property.
(b) Notwithstanding the foregoing, the Servicer shall not:
(i) authorize or permit any construction on any REO Property, other
than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the related Contract became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(ii) directly operate, or allow any other Person to directly operate,
any REO Property on any date more than 90 days after its date of
acquisition;
unless, in any such case, the Servicer has requested and received an Opinion of
Counsel to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Servicer may take such actions as are specified in such Opinion of Counsel.
(c) The Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
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(i) the terms and conditions of any such contract may not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that (A) the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed in subsection (a) hereof, (B) hold all
related revenues in a segregated account, which shall be an Eligible
Account, and (C) remit all related revenues collected (net of such costs
and expenses and any fees retained by such Independent Contractor) to the
Servicer on a monthly or more frequent basis;
(iii) none of the provisions of this Section 4.18(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Servicer of any of its duties and
obligations to the Trustee on behalf of Certificateholders with respect to
the operation and management of any such REO Property; and
(iv) the Servicer shall be obligated with respect thereto to the same
extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be entitled to pay all fees owed to any
such Independent Contractor out of the REO Account pursuant to Section 4.17.
(d) Subject to Section 4.18(b), the Servicer shall itself be entitled to
operate and manage any foreclosure property and, in such event, shall be
entitled to pay itself a monthly management fee in accordance with Section 4.17;
PROVIDED that the amount of such management fee shall not exceed the amount
customarily charged for the operation and management of similar property in the
locality of such REO Property by property managers other than the Servicer or
its Affiliates.
SECTION 4.19. REPORTS TO THE SECURITIES AND EXCHANGE COMMISSION.
The Servicer shall use reasonable efforts to assist either Contract Seller
in obtaining any information maintained by it in the ordinary course of
performing its duties hereunder that is necessary for either Contract Seller, on
behalf of the Trust Fund, to cause to be filed with the Securities and Exchange
Commission any periodic reports required to be filed under the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission thereunder.
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SECTION 4.20. ANNUAL STATEMENT AS TO COMPLIANCE.
The Servicer will deliver to the Contract Sellers, the Trustee and each
Rating Agency on or before April 1 of each year, beginning with the first April
1 that occurs after the Cut-off Date, an Officer's Certificate (i) stating that
a review of the activities of the Servicer during the preceding calendar year
and of performance under this Agreement has been made under such officer's
supervision, and (ii) stating that to the best of such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
SECTION 4.21. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before April 1 of each year, beginning with the first April 1 that
occurs after the Cut-off Date, the Servicer, at its expense, shall cause a firm
of independent public accountants which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Contract Sellers, the
Trustee and each Rating Agency to the effect that such firm has examined certain
documents and records relating to the servicing of the Contracts under this
Agreement and, at the option of the Servicer, manufactured housing installment
sale contracts and installment loan agreements under pooling and servicing
agreements substantially similar to this Agreement with regard to servicing
procedures (such statement to have attached thereto a schedule setting forth the
pooling and servicing agreements covered thereby, including this Agreement) and
that, on the basis of such examination conducted substantially in compliance
with this Agreement or such agreements, as the case may be, and generally
accepted auditing standards, such servicing has been conducted substantially in
compliance with this Agreement or such pooling and servicing agreements, as the
case may be, except for such exceptions as such firm believes to be immaterial
and such other exceptions or errors in records that may be set forth in such
statement. For purposes of such statement, such firm may assume conclusively
that all pooling and servicing agreements among the Contract Sellers, the
Servicer and the Trustee relating to certificates evidencing an interest in
actuarial manufactured housing contracts are substantially similar to one
another, except for any such pooling and servicing agreement which by its terms
specifically states otherwise.
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ARTICLE V
PAYMENTS, MONTHLY ADVANCES
AND MONTHLY REPORTS
SECTION 5.01. MONTHLY ADVANCES BY THE SERVICER.
(a) By the close of business on the day prior to each Distribution Date,
the Servicer shall (i) cause to be deposited, out of its own funds, in the
Certificate Account the Monthly Advance for the related Distribution Date, (ii)
direct the Trustee to apply all or a portion of the Excess Contract Payments in
the Certificate Account to make such Monthly Advance, or (iii) do any
combination of clauses (i) and (ii) to make such Monthly Advance. To the extent
that an Excess Contract Payment (or any portion thereof) that has been applied
pursuant to clause (ii) or (iii) is required for application as to all or a
portion of a scheduled payment due on the related Contract, the Servicer shall
deposit, out of its own funds, the amount of such Excess Contract Payment (or
the portion thereof required for such scheduled payment) into the Certificate
Account on the immediately succeeding Due Date, and the amount so deposited will
become part of the Outstanding Amount Advanced.
(b) The Servicer shall reimburse itself for the Outstanding Amount
Advanced out of (i) collections of delinquent payments of principal and interest
on Contracts as to which the Servicer previously made a Monthly Advance, (ii)
available funds in the Certificate Account attributable to Excess Contract
Payments or (iii) any combination of clauses (i) and (ii) above.
(c) If the Servicer determines that any advance made pursuant to Section
5.01(a) has become a Nonrecoverable Advance and at the time of such
determination there exists an Outstanding Amount Advanced, then the Servicer
shall reimburse itself out of funds in the Certificate Account for the amount of
such Nonrecoverable Advance (but only if there will not be a shortfall in
respect of principal and interest distributions on the Certificates (other than
the Class R Certificates) for the next succeeding Distribution Date) by
withdrawing such amount pursuant to Section 5.03(v), but only to the extent of
such Outstanding Amount Advanced. If a Contract becomes a Liquidated Contract
and at any time there exists an Outstanding Amount Advanced, then the Servicer
shall reimburse itself out of funds in the Certificate Account for the portion
of Monthly Advances equal to the aggregate of delinquent scheduled payments on
such Contract to the Due Date in the Collection Period in which such Contract
became a Liquidated Contract, but only to the extent of such Outstanding Amount
Advanced.
SECTION 5.02. PAYMENTS.
(a) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account an amount equal to the sum of the Available Distribution
Amount and the Reserve Account Draw Amount, if any, for such Distribution Date
and apply such amount, in the following order of priority, to the distribution
of:
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(i) to the Senior Certificateholders, the Class A-1 Interest
Distribution Amount, the Class A-2 Interest Distribution Amount and the
Class A-3 Interest Distribution Amount, the Class A-4 Interest Distribution
Amount, the Class A-5 Interest Distribution Amount and the Class A-6
Interest Distribution Amount concurrently to the Class A-1, Class A-2 and
Class A-3, Class A-3, Class A-4, Class A-5 and Class A-6
Certificateholders, respectively; PROVIDED that if the Available
Distribution Amount, together with the Reserve Account Draw Amount, is
insufficient to make the full distributions of interest referred to in this
clause (i), the Available Distribution Amount, together with the Reserve
Account Draw Amount, shall be distributed on such Classes of Certificates
pro rata based on such full amounts allocable to such Classes;
(ii) to the Senior Certificateholders, the Senior Percentage of the
Formula Principal Distribution Amount in the following order of priority:
(a) to the Class A-1 Certificateholders until the Certificate
Balance of the Class A-1 Certificates is reduced to zero;
(b) to the Class A-2 Certificateholders until the Certificate
Balance of the Class A-2 Certificates is reduced to zero; and
(c) to the Class A-3 Certificateholders until the Certificate
Balance of the Class A-3 Certificates is reduced to zero;
(d) to the Class A-4 Certificateholders until the Certificate
Balance of the Class A-4 Certificates is reduced to zero;
(e) to the Class A-5 Certificateholders until the Certificate
Balance of the Class A-5 Certificates is reduced to zero; and
(f) to the Class A-6 Certificateholders until the Certificate
Balance of the Class A-6 Certificates is reduced to zero;
(iii) to the Class A-7 Certificateholders, the Class A-7
Interest Distribution Amount;
(iv) to the Class A-7 Certificateholders, the Class A-7
Percentage of the Formula Principal Distribution Amount until the Class A-7
Certificate Balance is reduced to zero;
(v) to the Class B-1 Certificateholders, the Class B-1 Interest
Distribution Amount;
(vi) to the Class B-1 Certificateholders, the Class B Percentage of
the Formula Principal Distribution Amount until the Class B-1 Certificate
Balance is reduced to zero;
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(vii) to the Class B-2 Certificateholders, the Class B-2 Interest
Distribution Amount;
(viii) to the Class B-2 Certificateholders, the Class B Percentage of
the Formula Principal Distribution Amount (less any portion thereof
distributed pursuant to clause (vi) above) until the Class B-2 Certificate
Balance is reduced to zero;
(ix) if such Distribution Date is on or after the earlier of (a) the
Distribution Date in July 2006 and (b) the first Distribution Date on which
the percentage equivalent of a fraction, the numerator of which is the Pool
Scheduled Principal Balance (after giving effect to distributions with
respect to principal) for such Distribution Date and the denominator of
which is the Cut-off Date Pool Principal Balance, is less than or equal to
25%, to the Reserve Account, any remaining Available Distribution amount to
the extent necessary to increase the funds in the Reserve Account to the
Reserve Account Cap; and
(x) to the Class R Certificateholders, any remaining Available
Distribution Amount.
Notwithstanding the foregoing, on any Distribution Date on which the Class
A-7 Certificate Balance has not been reduced to zero and the amount
distributable (the "initial distribution") to holders of the Class B-2
Certificates pursuant to clause (viii) above would cause (x) the sum of (i) the
Class B-2 Certificate Balance and (ii) the amount on deposit in the Reserve
Account (in each case, after giving effect to the initial distribution) (such
sum, the "Clause X Amount") to be less than (y) $4,915,708 (the "Clause Y
Amount"), which is 2% of the Cut-off Date Pool Principal Balance, then the
distribution to holders of the Class B-2 Certificates pursuant to clause (viii)
above will be reduced to such amount as will cause the Clause X Amount to equal,
as nearly as possible, the Clause Y Amount, and the Available Distribution
Amount that remains after such reduced distribution to the Class B-2
Certificateholders will be distributed on account of principal pro rata to
holders of the Senior Certificates and the Class A-4 A-7 Certificates on the
basis of their Certificate Balances to the extent necessary to reduce such
Certificate Balances to zero.
In addition, notwithstanding the prioritization of the distribution of the
Formula Principal Distribution Amount to the Holders of the Senior Certificates
pursuant to clause (ii) above, on a Distribution Date, if any, in respect of
which a Deficiency Event is in effect, the portion of the Formula Principal
Distribution Amount for such Distribution Date that would otherwise be
distributed sequentially to the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5 and Class A-6 Certificateholders pursuant to clause (ii) above will
instead be distributed to the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5 and Class A-6 Certificateholders pro rata based upon the Certificate Balance
of each such Class until the Certificate Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5 and Class A-6 Certificates have been reduced to
zero. A "Deficiency Event" will be in effect for any Distribution Date as to
which the Pool Scheduled Principal Balance is equal to or less than the
aggregate of the Certificate Balances of the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5 and Class A-6 Certificates.
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Furthermore, notwithstanding the foregoing, if the percentage of the
Formula Principal Distribution Amount allocable to the Holders of the Class A-6
Certificates on any Distribution Date pursuant to clause (ii) above exceeds the
Class A-6 Certificate Balance for such Distribution Date, such excess will be
distributed to the Class A-7 and Class B-1 Certificateholders (or the Class B-2
Certificateholders if the Class B-1 Certificate Balance has been reduced to
zero) on the basis of the Class A-7 and Class B Percentages, respectively. If
the percentage of the Formula Principal Distribution Amount allocable to the
Class A-7 Certificateholders on any Distribution Date pursuant to clause
(iv) above exceeds the Class A-7 Certificate Balance for any such Distribution
Date, such excess will be distributed to the Class B-1 Certificateholders until
the Class B-1 Certificate Balance is reduced to zero (and to the Class B-2
Certificateholders thereafter until the Class B-2 Certificate Balance is reduced
to zero).
Such distributions to the Class A-1 Certificateholders, Class A-2
Certificateholders, Class A-3 Certificateholders, Class A-4 Certificateholders,
Class A-5 Certificateholders, Class A-6 Certificateholders, Class A-7
Certificateholders, Class B-1 Certificateholders and Class B-2
Certificateholders shall be made such that the Trustee shall distribute (a) to
each Class A-1 Certificateholder as of the preceding Record Date an amount equal
to the product of the aggregate Percentage Interest evidenced by such
Certificateholder's Class A-1 Certificates and the Class A-1 Distribution Amount
for such Distribution Date, (b) to each Class A-2 Certificateholder as of the
preceding Record Date an amount equal to the product of the aggregate Percentage
Interest evidenced by such Certificateholder's Class A-2 Certificates and the
Class A-2 Distribution Amount for such Distribution Date, (c) to each Class A-3
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's Class
A-3 Certificates and the Class A-3 Distribution Amount for such Distribution
Date, (d) to each Class A-4 Certificateholder as of the preceding Record Date
an amount equal to the product of the aggregate Percentage Interest evidenced by
by such Certificateholder's Class A-4 Certificates and the Class A-4
Distribution Amount for such Distribution Date, (e) to each Class A-5
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's Class
A-5 Certificates and the Class A-5 Distribution Amount for such Distribution
Date, (f) to each Class A-6 Certificateholder as of the preceding Record Date an
amount equal to the product of the aggregate Percentage Interest evidenced by
such Certificateholder's Class A-6 Certificates and the Class A-6 Distribution
Amount for such Distribution Date, (d) to each Class A-7 Certificateholder as of
the preceding Record Date an amount equal to the product of the aggregate
Percentage Interest evidenced by such Certificateholder's Class A-7 Certificates
and the Class A-7 Distribution Amount, (e) to each Class B-1 Certificateholder
as of the preceding Record Date an amount equal to the product of the aggregate
Percentage Interest evidenced by such Certificateholder's Class B-1 Certificates
and the Class B-1 Distribution Amount for such Distribution Date and (f) to each
Class B-2 Certificateholder as of the preceding Record Date an amount equal to
the product of the aggregate Percentage Interest evidenced by such
Certificateholder's Class B-2 Certificates and the Class B-2 Distribution Amount
for such Distribution Date. The Trustee shall pay each Certificateholder of
record by check mailed to such Certificateholder at the address for such
Certificateholder appearing on the Certificate Register; PROVIDED that if such
Certificateholder holds Certificates evidencing a Percentage Interest
aggregating 10% or more with respect to such
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Class and has given the Trustee appropriate written instructions at least 10
days prior to the related Distribution Date (which instructions, until revised,
shall remain operative for all Distribution Dates thereafter), the Trustee shall
pay such Certificateholder by wire transfer of funds. If on any Determination
Date the Servicer determines that there are no Contracts outstanding and no
other funds or assets in the Trust Fund other than the funds in the Certificate
Account, the Servicer promptly shall instruct the Trustee to send the final
distribution notice to each Certificateholder and make provision for the final
distribution in accordance with Section 10.01(c). Final payment of any
Certificate shall be made only upon presentation of such Certificate at the
office or agency of the Certificate Registrar.
(b) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account (solely out of the Available Distribution Amount for such
Distribution Date after giving effect to the distributions made to the
Certificateholders pursuant to Section 5.02(a)(i) - (viii) and to the Reserve
Account pursuant to Section 5.02(a)(ix) on such Distribution Date) and
distribute the amount specified in Section 5.02(a)(x) for such Distribution Date
to the Class R Certificateholders by wire transfer of immediately available
funds. Such distribution shall be made by a means that is mutually acceptable
to the Trustee and the Class R Certificateholders.
(c) Each distribution with respect to a Global Certificate shall be paid
to the Depository, which shall credit the amount of such distribution to the
accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing
such distribution to the Certificate Owners that it represents and to each
indirect participating brokerage firm (a "brokerage firm" or "indirect
participating firm") for which it acts as agent. Each brokerage firm shall be
responsible for disbursing funds to the Certificate Owners that it represents.
All such credits and disbursements with respect to a Global Certificate are to
be made by the Depository and the Depository Participants in accordance with the
provisions of the Certificates. Neither the Trustee, the Certificate Registrar,
either Contract Seller nor the Servicer shall have any responsibility therefor.
To the extent applicable and not contrary to the rules of the Depository, the
Trustee shall comply with the provisions of the forms of the Certificates as set
forth in EXHIBIT B-1, EXHIBIT B-2, EXHIBIT B-3, EXHIBIT B-4, EXHIBIT B-5,
EXHIBIT B-6, EXHIBIT B-7, EXHIBIT B-8, EXHIBIT B-9 and EXHIBIT C (reverse of
Certificates) hereto.
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SECTION 5.03. PERMITTED WITHDRAWALS FROM THE CERTIFICATE ACCOUNT.
The Servicer may, from time to time as provided herein, make withdrawals
from the Certificate Account of amounts deposited therein pursuant to
Section 4.05 that are attributable to the Contracts for the following purposes:
(i) to pay to the relevant Contract Seller with respect to each
Contract sold by it or property acquired in respect thereof that has been
repurchased or replaced pursuant to Section 3.05, all amounts received
thereon that are specified in such Section to be property of such Contract
Seller;
(ii) to reimburse itself for the payment of taxes or charges out of
Liquidation Proceeds (to the extent not previously retained from such
Liquidation Proceeds prior to their deposit) or out of payments expressly
made by the related Obligor to reimburse the Servicer for such taxes or
charges, as permitted by Section 4.06;
(iii) to pay to itself the Monthly Servicing Fee and Repossession
Profits, if any;
(iv) to reimburse itself or a previous Servicer out of Liquidation
Proceeds (to the extent not previously retained from Liquidation Proceeds
prior to their deposit in the Certificate Account) in respect of a
Manufactured Home and out of payments by the related Obligor (to the extent
of payments expressly made by the Obligor to reimburse the Servicer for
insurance premiums) for expenses incurred by it in respect of such
Manufactured Home that are specified as being reimbursable to it pursuant
to Section 4.07, 4.09, or 4.13 or to a previous Servicer under Section 7.07;
(v) to reimburse itself for any Nonrecoverable Advances and for
Monthly Advances in respect of Liquidated Contracts, in each case, in
accordance with Section 5.01(c);
(vi) after the Class A-1 Certificate Balance, Class A-2 Certificate
Balance, Class A-3 Certificate Balance, the Class A-4 Certificate Balance,
Class A-5 Certificate Balance, Class A-6 Certificate Balance, Class A-7
Certificate Balance, Class B-1 Certificate Balance, and Class B-2
Certificate Balance have been reduced to zero, to reimburse the Servicer
for expenses incurred and reimbursable to it pursuant to Section 7.05; and
(vii) to withdraw any amount deposited in the Certificate Account
that was not required to be deposited therein (including any collections on
the Contracts that, pursuant to Section 2.01(a), are not part of the Trust
Fund).
Since, in connection with withdrawals pursuant to clauses (i), (ii) and (iv) of
this Section 5.03, the Servicer's entitlement thereto is limited to collections
or other recoveries on the related Contract, the Servicer shall keep and
maintain separate accounting, on a Contract by Contract basis, for the purpose
of justifying any withdrawal from the Certificate Account pursuant to such
clauses.
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SECTION 5.04. MONTHLY REPORTS.
At least one Business Day prior to each Distribution Date, the Servicer
shall cause the Trustee and the Certificate Administrator to receive a Monthly
Report, which report shall include the following information with respect to the
immediately following Distribution Date:
(a) the Class A-1 Distribution Amount for such Distribution Date;
(b) the amount of principal to be distributed to the Class A-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(c) the amount of interest to be distributed to Class A-1
Certificateholders on such Distribution Date (separately identifying any Class
A-1 Unpaid Interest Shortfall included in such distribution);
(d) the remaining Class A-1 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(e) the Class A-2 Distribution Amount for such Distribution Date;
(f) the amount of principal to be distributed to the Class A-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(g) the amount of interest to be distributed to Class A-2
Certificateholders on such Distribution Date (separately identifying any Class
A-2 Unpaid Interest Shortfall included in such distribution);
(h) the remaining Class A-2 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(i) the Class A-3 Distribution Amount for such Distribution Date;
(j) the amount of principal to be distributed to the Class A-3
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
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(k) the amount of interest to be distributed to Class A-3
Certificateholders on such Distribution Date (separately identifying any Class
A-3 Unpaid Interest Shortfall included in such distribution);
(l) the remaining Class A-3 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(m) the Class A-4 Distribution Amount for such Distribution Date;
(n) the amount of principal to be distributed to the Class A-4
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(o) the amount of interest to be distributed to Class A-4
Certificateholders on such Distribution Date (separately identifying any
Class A-4 Unpaid Interest Shortfall included in such distribution);
(p) the remaining Class A-4 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(q) the Class A-5 Distribution Amount for such Distribution Date;
(r) the amount of principal to be distributed to the Class A-5
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(s) the amount of interest to be distributed to Class A-5
Certificateholders on such Distribution Date (separately identifying any
Class A-5 Unpaid Interest Shortfall included in such distribution);
(t) the remaining Class A-5 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(u) the Class A-6 Distribution Amount for such Distribution Date;
(v) the amount of principal to be distributed to the Class A-6
Certificateholders, separately stating the contribution thereto from each of
the amounts specified in clauses (a) through (e), inclusive, of the definition
of Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
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(w) the amount of interest to be distributed to Class A-6
Certificateholders on such Distribution Date (separately identifying any
Class A-6 Unpaid Interest Shortfall included in such distribution);
(x) the remaining Class A-6 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(y) the Class A-7 Distribution Amount for such Distribution Date;
(z) the amount of principal to be distributed to the Class A-7
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(aa) the amount of interest to be distributed to Class A-7
Certificateholders on such Distribution Date (separately identifying any
Class A-7 Unpaid Interest Shortfall included in such distribution);
(bb) the remaining Class A-7 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(cc) the Class B-1 Distribution Amount for such Distribution Date;
(dd) the amount of principal to be distributed to the Class B-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(ee) the amount of interest to be distributed to Class B-1
Certificateholders on such Distribution Date (separately identifying any
Class B-1 Unpaid Interest Shortfall included in such distribution);
(ff) the remaining Class B-1 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(gg) the Class B-2 Distribution Amount for such Distribution Date;
(hh) the amount of principal to be distributed to the Class B-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
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(ii) the amount of interest to be distributed to Class B-2
Certificateholders on such Distribution Date (separately identifying any
Class B-2 Unpaid Interest Shortfall included in such distribution);
(jj) the remaining Class B-2 Certificate Balance after giving effect to the
payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(kk) the total amount of Monthly Servicing Fee payable on such Distribution
Date, the amount of any reimbursement to the Servicer pursuant to Section 7.05,
and any Late Payment Fees, Extension Fees and assumption fees paid during the
prior Collection Period, and the amount of any other fees payable out of the
Trust Fund;
(ll) the number of and aggregate remaining principal balance of Contracts
with payments delinquent 31 to 59, 60 to 89, and 90 or more days, respectively;
(mm) the number of Contracts that were repurchased or replaced by a
Contract Seller in accordance with Section 3.05 during the prior Collection
Period, identifying such Contracts and (i) the Repurchase Price of such
Contracts and (ii) the amount, if any, paid by such Contract Seller due to the
differences, if any, between the remaining principal balances of the replaced
Contracts and the Eligible Substitute Contracts;
(nn) the Pool Factor for the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-6 Certificates, Class A-7 Certificates, Class B-1
Certificates and Class B-2 Certificates after giving effect to the payment of
principal to be made on such Distribution Date;
(oo) the aggregate principal balances of all Contracts that are not
Liquidated Contracts and in respect of which the related Manufactured Homes have
been repossessed or foreclosed upon;
(pp) the Aggregate Net Liquidation Losses through the Collection Period
immediately preceding such Distribution Date;
(qq) the Senior Percentage;
(rr) the Class A-7 Percentage;
(ss) the Class B Percentage;
(tt) the balance, if any, in the Reserve Account (before and after giving
effect to the distributions on such Distribution Date);
(uu) the Reserve Account Draw Amount, if any, required to be paid for such
Distribution Date;
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(vv) the Average Thirty Day Delinquency Ratio and the Average Sixty Day
Delinquency Ratio for such Distribution Date;
(ww) the Cumulative Realized Losses (as a percentage of the Cut-off Date
Pool Principal Balance) for such Distribution Date;
(xx) the Current Realized Loss Ratio for such Distribution Date;
(yy) the amount of any Monthly Advance and the Outstanding Amount Advanced
with respect to such Distribution Date;
(zz) the amounts, if any, deposited into the Reserve Account for such
Distribution Date;
(aaa) the amount, if any, to be distributed to the Class R
Certificateholders;
(bbb) the weighted average Contract Rate for the Contract Pool for the
Collection Period immediately preceding the month of such Distribution Date;
(ccc) the number of Manufactured Homes currently held by the Servicer
due to repossessions and the aggregate principal balance of the related
defaulted Contracts;
(ddd) whether the Class A-7 Principal Distribution Test and/or the
Class B Principal Distribution Test are met with respect to such Distribution
Date;
(eee) the Clause X Amount and whether the Clause X Amount is equal to
or less than the Clause Y Amount; and
(fff) the Pool Scheduled Principal Balance, expressed as a percentage
of the Cut-off Date Pool Principal Balance.
Copies of all Monthly Reports shall be provided by the Servicer to each
Rating Agency. Neither the Trustee nor the Certificate Administrator shall be
under any duty to recalculate or verify the information provided to it by the
Servicer. The Servicer shall deliver a written notice to the Trustee not later
than three Business Days next preceding a Distribution Date if it cannot provide
the Trustee and the Certificate Administrator with a Monthly Report for such
Distribution Date.
SECTION 5.05. CERTIFICATE OF SERVICING OFFICER.
Each Monthly Report pursuant to Section 5.04 shall be accompanied by a
certificate of a Servicing Officer substantially in the form of EXHIBIT F,
certifying the accuracy of the Monthly Report and that such officer is not aware
of the occurrence of an Event of Default or of an event
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that, with notice or lapse of time or both, would become an Event of Default, or
if such officer is aware that such an event has occurred and is continuing,
specifying the event and its status.
SECTION 5.06. OTHER DATA.
In addition, the Servicer, on request of the Trustee or the Certificate
Administrator, shall furnish the Trustee or the Certificate Administrator (as
the case may be) such underlying data as may reasonably be requested.
SECTION 5.07. STATEMENTS TO CERTIFICATEHOLDERS.
Concurrently with each distribution to Certificateholders pursuant to this
Article V, the Trustee shall mail, or cause the Paying Agent to mail, to each
Certificateholder at the address appearing on the Certificate Register a
statement as of the related Distribution Date prepared by the Servicer setting
forth:
(1) the Class A-1 Distribution Amount for such Distribution Date;
(2) the amount of principal to be distributed to the Class A-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(3) the amount of interest to be distributed to Class A-1
Certificateholders on such Distribution Date (separately identifying any
Class A-1 Unpaid Interest Shortfall included in such distribution);
(4) the remaining Class A-1 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(5) the Class A-2 Distribution Amount for such Distribution Date;
(6) the amount of principal to be distributed to the Class A-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(7) the amount of interest to be distributed to Class A-2
Certificateholders on such Distribution Date (separately identifying any
Class A-2 Unpaid Interest Shortfall included in such distribution);
(8) the remaining Class A-2 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
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(9) the Class A-3 Distribution Amount for such Distribution Date;
(10) the amount of principal to be distributed to the Class A-3
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(11) the amount of interest to be distributed to Class A-3
Certificateholders on such Distribution Date (separately identifying any Class
A-3 Unpaid Interest Shortfall included in such distribution);
(12) the remaining Class A-3 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(13) the Class A-4 Distribution Amount for such Distribution Date;
(14) the amount of principal to be distributed to the Class A-4
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(15) the amount of interest to be distributed to Class A-4
Certificateholders on such Distribution Date (separately identifying any Class
A-4 Unpaid Interest Shortfall included in such distribution);
(16) the remaining Class A-4 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(17) the Class A-5 Distribution Amount for such Distribution Date;
(18) the amount of principal to be distributed to the Class A-5
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(19) the amount of interest to be distributed to Class A-5
Certificateholders on such Distribution Date (separately identifying any
Class A-5 Unpaid Interest Shortfall included in such distribution);
(20) the remaining Class A-5 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
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(21) the Class A-6 Distribution Amount for such Distribution Date;
(22) the amount of principal to be distributed to the Class A-6
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(23) the amount of interest to be distributed to Class A-6
Certificateholders on such Distribution Date (separately identifying any Class
A-6 Unpaid Interest Shortfall included in such distribution);
(24) the remaining Class A-6 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(25) the Class A-7 Distribution Amount for such Distribution Date;
(26) the amount of principal to be distributed to the Class A-7
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(27) the amount of interest to be distributed to Class A-7
Certificateholders on such Distribution Date (separately identifying any Class
A-7 Unpaid Interest Shortfall included in such distribution);
(28) the remaining Class A-7 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(29) the Class B-1 Distribution Amount for such Distribution Date;
(30) the amount of principal to be distributed to the Class B-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(31) the amount of interest to be distributed to Class B-1
Certificateholders on such Distribution Date (separately identifying any Class
B-1 Unpaid Interest Shortfall included in such distribution);
(32) the remaining Class B-1 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
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(33) the Class B-2 Distribution Amount for such Distribution Date;
(34) the amount of principal to be distributed to the Class B-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(35) the amount of interest to be distributed to Class B-2
Certificateholders on such Distribution Date (separately identifying any Class
B-2 Unpaid Interest Shortfall included in such distribution);
(36) the remaining Class B-2 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(37) the number and aggregate remaining principal balance of Contracts
that are delinquent 31 to 59 days, 60 to 89 days, and 90 or more days,
respectively;
(38) the amount of fees and expenses payable out of the Trust Fund for
such Collection Period;
(39) the percentage obtained by dividing the aggregate Certificate
Balances (after giving effect to the distributions on the Certificates made on
such Distribution Date) by the aggregate Initial Certificate Balances;
(40) the Senior Percentage;
(41) the Class A-7 Percentage;
(42) the Class B Percentage;
(43) the balance in the Reserve Account, if any (before and after
giving effect to the distributions on such Distribution Date);
(44) the Reserve Account Draw Amount, if any, for such Distribution
Date and the amount thereof applied to interest and principal on the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class B-1 and
Class B-2 Certificates, stated separately;
(45) the Average Thirty Day Delinquency Ratio and the Average Sixty
Day Delinquency Ratio for such Distribution Date;
(46) the Cumulative Realized Losses (as a percentage of the Cut-off
Date Pool Principal Balance) for such Distribution Date;
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(47) the Current Realized Loss Ratio for such Distribution Date;
(48) the amount of any Monthly Advance and the Outstanding Amount
Advanced with respect to such Distribution Date;
(49) the amounts, if any, to be distributed to the Reserve Account for
such Distribution Date; and
(50) such other customary factual information as is available to the
Servicer as the Servicer deems necessary and can obtain reasonably from its
existing data base to enable Certificateholders to prepare their tax returns.
In the case of information furnished pursuant to clauses (1) through (36)
above, the amounts shall be expressed as a dollar amount per Certificate with a
$1,000 denomination.
Within a reasonable period of time after the end of each calendar year,
subject to the next sentence, but in no event later than 90 days after the end
of such year, the Servicer shall prepare and furnish to the Trustee, the Paying
Agent and the Certificate Administrator, and the Trustee, promptly upon receipt,
shall furnish or cause the Paying Agent to furnish to each Person who at any
time during the calendar year was the Holder of a Certificate, a statement
containing the information set forth in clauses (2) and (3) above, in the case
of Class A-1 Certificateholders, (6) and (7) above, in the case of Class A-2
Certificateholders, (10) and (11) above, in the case of Class A-3
Certificateholders, (14) and (15) above, in the case of Class A-4
Certificateholders, (18) and (19) above, in the case of Class A-5
Certificateholders, (22) and (23) above, in the case of Class A-6
Certificateholders, (26) and (27) above, in the case of Class A-7
Certificateholders, (30) and (31) above, in the case of Class B-1
Certificateholders and (34) and (35) above, in the case of Class B-2
Certificateholders, aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code as from time to time in force. On each
Distribution Date, the Servicer shall forward or cause to be forwarded by mail
to each Holder of a Class R Certificate, a copy of the Monthly Report for such
Distribution Date. The Servicer shall also forward or cause to be forwarded by
mail to each Holder of a Class R Certificate, a statement setting forth such
information as the Servicer deems necessary or appropriate.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was a Holder of a Class R Certificate a statement
containing the applicable distribution information provided pursuant to this
Section 5.07 aggregated for such calendar year or applicable portion thereof
during which such Person was a Holder of a Class R Certificate. Such obligation
of the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code.
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A Certificate Owner holding Certificates of a Class representing in the
aggregate at least 5% of the Percentage Interests of such Class shall, upon
written request to the Trustee certifying its beneficial ownership of such
Certificates, be entitled to receive copies of all reports provided by the
Trustee. Copies of all reports provided by the Trustee to the
Certificateholders shall also be provided to each Rating Agency.
SECTION 5.08. RESERVE ACCOUNT.
(a) On the Closing Date, the Trustee shall establish and maintain the
Reserve Account titled "[Trustee] in trust for registered holders of BankAmerica
Manufactured Housing Contract Trust, Senior/Subordinate Pass-Through
Certificates, Series 1996-1" as part of the Trust Fund for the benefit of the
Certificateholders as described herein. The Reserve Account shall have an
initial balance as of the Closing Date of zero, and will be funded from time to
time in accordance with clause (ix) of Section 5.02(a). On each Distribution
Date, the Trustee, based upon information in the Monthly Report, shall withdraw
the Reserve Account Draw Amount, if any, from the Reserve Account and deposit it
in the Certificate Account. Any Reserve Account Draw Amount shall be applied
pursuant to Section 5.02. After giving effect to the withdrawal of the Reserve
Account Draw Amount, if any, for a Distribution Date, the excess, if any, of the
amount on deposit in the Reserve Account over the Reserve Account Cap shall be
distributed to the Class R Certificateholders.
(b) Amounts held in the Reserve Account shall be invested by the Trustee
in Eligible Investments in the name of the Trustee, as Trustee, maturing, or in
the case of a money market fund redeemable (without premium or penalty) not
later than one Business Day prior to the next succeeding Distribution Date
(except that if such Eligible Investment is an obligation of the institution
that maintains the Reserve Account, then such Eligible Investment shall mature,
or in the case of a money market fund shall be redeemed, not later than such
Distribution Date) and shall not be sold or disposed of prior to its maturity.
All net income and gain, if any, from any such investments in respect of a
Distribution Date shall be paid to the Holders of the Class R Certificates.
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ARTICLE VI
THE CERTIFICATES
SECTION 6.01. THE CERTIFICATES.
The Certificates shall be substantially in the forms attached hereto as
EXHIBIT B-1, EXHIBIT B-2, EXHIBIT B-3, EXHIBIT B-4, EXHIBIT B-5, EXHIBIT B-6,
EXHIBIT B-7, EXHIBIT B-8, EXHIBIT B-9 and EXHIBIT C. The Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class B-1 and Class B-2
Certificates shall be issuable in registered form, in the minimum dollar
denominations, integral dollar multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum dollar denomination) and aggregate dollar
denominations per Class as set forth in the following table:
<TABLE>
<CAPTION>
Integral
Multiples Initial
Minimum in Excess of Latest Scheduled Certificate
Class Denomination Minimum Distribution Date Balance
- ----- ------------ ------------ ----------------- -----------
<S> <C> <C> <C> <C>
A-1 $1,000 $1 October 2026 $47,129,000
A-2 $1,000 $1 October 2026 $51,893,000
A-3 $1,000 $1 October 2026 $20,316,000
A-4 $1,000 $1 October 2026 $26,068,000
A-5 $1,000 $1 October 2026 $28,483,000
A-6 $1,000 $1 October 2026 $27,040,000
A-7 $1,000 $1 October 2026 $20,891,000
B-1 $1,000 $1 October 2026 $15,361,000
B-2 $250,000 $1 October 2026 $8,604,417
</TABLE>
provided, that one Class B-2 Certificate will have a denomination representing
the remainder of the Initial Class B-2 Certificate Balance.
The two Class R Certificates shall initially be issued in the denominations
of 35% and 65% Percentage Interests, respectively, each with no principal
balance.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have
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ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such authentication and
delivery. No Certificate shall be entitled to any benefit under this Agreement,
or be valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form set forth as attached
hereto executed by the Trustee by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
On the Closing Date, the Trustee shall authenticate the Certificates to be
issued at the written direction of the Contract Sellers, or any Affiliate
thereof.
The Contract Sellers shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION 6.02. CERTIFICATE REGISTER; REGISTRATION OF
TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Trustee shall maintain, or cause to be maintained, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration
of transfer of any Certificate, the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange shall
be canceled and subsequently destroyed by the Trustee in accordance with the
Trustee's customary procedures.
(b) No Transfer of a Private Certificate shall be made unless such
Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and
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such laws, the Certificateholder desiring to effect such Transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee in
writing the facts surrounding the Transfer in substantially the forms set forth
in EXHIBIT H (the "Transferor Certificate") and either EXHIBIT J (the
"Investment Letter") or EXHIBIT K (the "Rule 144A Letter") or as otherwise
acceptable to the Contract Sellers. In the event that such a Transfer is to be
made within two years from the date of the initial issuance of Certificates
pursuant hereto (other than a Transfer as to which the proposed transferee has
provided a Rule 144A Letter), there shall also be delivered to the Trustee, the
Contract Sellers and the Servicer an Opinion of Counsel that such Transfer may
be made pursuant to an exemption from the Securities Act and such state
securities laws, which Opinion of Counsel shall not be an expense of the
Contract Sellers, the Servicer or the Trustee. The Contract Sellers shall
provide to any Holder of Private Certificate and any prospective transferee
designated by any such Holder, information regarding the Certificates and the
Contracts and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for Transfer of any
Private Certificate without registration thereof under the Securities Act
pursuant to the registration exemption provided by Rule 144A. The Trustee and
the Servicer shall cooperate with the Contract Sellers in providing the Rule
144A information referenced in the preceding sentence, including providing to
the Contract Sellers such information regarding the Certificates, the Contracts
and other matters regarding the Trust Fund as the Contract Sellers shall
reasonably request to meet their obligation under the preceding sentence. Each
Holder of a Private Certificate desiring to effect such Transfer shall, and does
hereby agree to, indemnify the Trustee, the Contract Sellers and the Servicer
against any liability that may result if the Transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of an ERISA Restricted Certificate shall be made unless the
Trustee, the Contract Sellers and the Servicer shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Trustee, the Contract Sellers and the
Servicer, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
or a Person acting on behalf of any such plan or using the assets of any such
plan, (ii) if such transferee is an insurance company, a representation that it
is purchasing such ERISA Restricted Certificate with funds contained in an
"insurance company general account" (as such term is defined in Section v(e) of
the Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificate are covered under PTCE 95-60 or such
other representation as is acceptable to the Contract Sellers and the Servicer
or (iii) in the case of any such ERISA Restricted Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a plan
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee, the
Contract Sellers and the Servicer to the effect that the purchase or holding of
such ERISA Restricted Certificate will not result in the assets of the Trust
Fund being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, the Contract
Sellers or the Servicer to any obligation in addition to those expressly
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, either Contract Seller or the Servicer. For purposes of clauses
(i) and (ii) in the preceding sentence, such
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representation shall be deemed to have been made to the Trustee, the Contract
Sellers and the Servicer by the transferee's acceptance of such ERISA Restricted
Certificates (or the acceptance by a Certificate Owner of the beneficial
interest in any such Class of ERISA Restricted Certificates) unless the Trustee,
the Contract Sellers and the Servicer shall have received from the transferee an
alternative representation acceptable in form and substance to the Contract
Sellers at the time of such acceptance, and the Depository shall not make any
such representation. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA Restricted Certificate to or on behalf of an
employee benefit plan subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code without the delivery to the Trustee, the Contract
Sellers and the Servicer of an Opinion of Counsel satisfactory to the Trustee,
the Contract Sellers and the Servicer as described above shall be void and of no
effect; PROVIDED, HOWEVER, that the restriction set forth in this sentence shall
not be applicable if there has been delivered to the Trustee, the Contract
Sellers and the Servicer an Opinion of Counsel satisfactory to the Trustee, the
Contract Sellers and the Servicer to the effect that the purchase or holding of
an ERISA Restricted Certificate will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, either
Contract Seller or the Servicer to any obligation in addition to those expressly
undertaken in this Agreement. The Trustee shall be under no liability to any
Person for any registration of transfer of any ERISA Restricted Certificate that
is in fact not permitted by this Section 6.02(b) or for making any payments due
on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Trustee in accordance with the foregoing
requirements. The Trustee shall be entitled, but not obligated, to recover from
any Holder of any ERISA Restricted Certificate that was in fact an employee
benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975
of the Code or a Person acting on behalf of any such plan at the time it became
a Holder or, at such subsequent time as it became such a plan or Person acting
on behalf of such a plan, all payments made on such ERISA Restricted Certificate
at and after either such time. Any such payments so recovered by the Trustee
shall be paid and delivered by the Trustee to the last preceding Holder of such
Certificate that is not such a plan or Person acting on behalf of a plan.
(c) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Class R Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
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affidavit (a "TRANSFER AFFIDAVIT") of the initial owner or the proposed
transferee in the form attached hereto as EXHIBIT G.
(iii) Each Person holding or acquiring any Ownership Interest
in a Class R Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its
Ownership Interest in a Class R Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Class R Certificate
and (C) not to Transfer its Ownership Interest in a Class R Certificate or
to cause the Transfer of an Ownership Interest in a Class R Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Class R Certificate in violation of the provisions of this
Section 6.02(c) shall be absolutely null and void and shall vest no rights
in the purported Transferee. If any purported transferee shall become a
Holder of a Class R Certificate in violation of the provisions of this
Section 6.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of
registration of Transfer of such Class R Certificate. The Trustee shall be
under no liability to any Person for any registration of Transfer of a
Class R Certificate that is in fact not permitted by Section 6.02(b) and
this Section 6.02(c) or for making any payments due on such Certificate to
the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Class R Certificate that was in fact not a Permitted Transferee at the time
it became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Class R Certificate at and
after either such time. Any such payments so recovered by the Trustee
shall be paid and delivered by the Trustee to the last preceding Permitted
Transferee of such Certificate.
(v) The Servicer shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information necessary
to compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Class R Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set forth in this
Section 6.02(c) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of either Contract Seller, the Trustee, the Trust Fund
or the Servicer, to the effect that the elimination of such restrictions will
not cause the Trust Fund to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Class R Certificate hereby consents to any amendment
of this Agreement that, based on an Opinion of Counsel furnished to the Trustee,
is
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reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class R Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Class R Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 6.02 shall not be an expense of the Trust Fund, the
Trustee, either Contract Seller or the Servicer.
SECTION 6.03. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and of the ownership thereof and (b) there is delivered to
the Trustee and the Certificate Administrator, if any, such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee that such Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like Class, tenor and Percentage Interest. In
connection with the issuance of any new Certificate under this Section 6.03, the
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Any replacement Certificate issued pursuant to this Section 6.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. All Certificates surrendered to the Trustee under
the terms of this Section 6.03 shall be canceled and destroyed by the Trustee in
accordance with its standard procedures without liability on its part.
SECTION 6.04. PERSONS DEEMED OWNERS.
The Servicer, the Trustee and any agent of the Servicer or the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Servicer, the
Trustee nor any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
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SECTION 6.05. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, and (c) provide a copy of the communication that such
Certificateholders propose to transmit or if either Contract Seller or Servicer
shall request such information in writing from the Trustee, then the Trustee
shall, within ten Business Days after the receipt of such request, provide such
Contract Seller, the Servicer or such Certificateholders at such recipients'
expense the most recent list of the Certificateholders of the Trust Fund held by
the Trustee, if any. Each Contract Seller and every Certificateholder, by
receiving and holding a Certificate, agree that the Trustee shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 6.06. GLOBAL CERTIFICATES.
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class
A-7 and Class B-1 Certificates, upon original issuance, shall be issued in the
form of one or more typewritten Certificates representing the Global
Certificates, to be delivered to the Depository by or on behalf of the Contract
Sellers. Such Global Certificates shall initially be registered on the
Certificate Register in the name of the Depository or its nominee, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in such Certificates, except as provided in Section
6.08. Unless and until definitive, fully registered Certificates ("DEFINITIVE
CERTIFICATES") have been issued to the Certificate Owners of such Certificates
pursuant to Section 6.08:
(a) the provisions of this Section shall be in full force and effect;
(b) Either Contract Seller, the Servicer and the Trustee may treat the
Depository and the Depository Participants for all purposes as the authorized
representative of the respective Certificate Owners of such Certificates and, in
the case of distributions, with the Depository as the authorized representative
of the Depository Participants and the Certificate Owners;
(c) registration of the Global Certificates may not be transferred by the
Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of such Certificates
shall be exercised only through the Depository and the Depository Participants
and shall be limited to those established by law and agreements between the
Owners of such Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until Definitive
Certificates are issued with respect to the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7 and Class B-1 Certificates pursuant
to Section 6.08, the Depository will make book-entry transfers among the
Depository Participants and receive and transmit distributions of principal and
interest on the related Certificates to such Depository Participants;
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(e) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants; and
(g) to the extent that the provisions of this Section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the Certificate Balance of a Class of
Certificates, such direction or consent may be given by Certificate Owners
(acting through the Depository and the Depository Participants) owning Global
Certificates evidencing the requisite percentage of the Certificate Balance of
such Class of Certificates or the requisite Percentage Interests.
SECTION 6.07. NOTICES TO DEPOSITORY.
Whenever any notice or other communication is required to be given to
Certificateholders of any Class with respect to which Global Certificates have
been issued, unless and until Definitive Certificates shall have been issued to
the related Certificate Owners, the Trustee shall give all such notices and
communications to the Depository.
SECTION 6.08. DEFINITIVE CERTIFICATES.
If, after Global Certificates have been issued with respect to Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7 and Class B-1
Certificates, (a) the Servicer advises the Trustee that the Depository is no
longer willing or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Certificates and the Trustee or the
Contract Sellers are unable to locate a qualified successor, (b) the Contract
Sellers, at their sole option, advise the Trustee that they elect to terminate
the book-entry system with respect to such Certificates through the Depository
or (c) after the occurrence and continuation of an Event of Default, Certificate
Owners of such Global Certificates having not less than 51% of the Voting Rights
evidenced by the related Class advise the Trustee and the Depository in writing
through the Depository Participants that the continuation of a book-entry system
with respect to such Certificates through the Depository (or its successor) is
no longer in the best interests of the Certificate Owners with respect to such
Certificates, then the Trustee shall notify all Certificate Owners of such
Class of Certificates, through the Depository, of the occurrence of any such
event and of the availability of Definitive Certificates for such Class to
Certificate Owners requesting the same. The Contract Sellers shall provide the
Trustee with an adequate inventory of certificates to facilitate the issuance
and transfer of Definitive Certificates. Upon surrender to the Trustee of any
such Certificates by the Depository, accompanied by registration instructions
from the Depository for registration, the Trustee shall authenticate and deliver
such Definitive Certificates. Neither of the Contract Sellers nor the Trustee
shall be liable for any delay in delivery of such instructions
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and each may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of such Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Depository shall be
deemed to be imposed upon and performed by the Trustee, to the extent applicable
with respect to such Definitive Certificates and the Trustee shall recognize the
Holders of such Definitive Certificates as Certificateholders hereunder.
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ARTICLE VII
THE CONTRACT SELLERS AND THE SERVICER
SECTION 7.01. LIABILITIES TO OBLIGORS.
No liability to any Obligor under any of the Contracts arising out of any
act or omission to act of the Servicer in servicing the Contracts prior to the
Closing Date is intended to be assumed by either Contract Seller, the Trustee,
the Certificate Administrator or the Certificateholders under or as a result of
this Agreement and the transactions contemplated hereby and, to the maximum
extent permitted and valid under mandatory provisions of law, the Contract
Sellers, the Trustee, the Certificate Administrator and the Certificateholders
expressly disclaim such assumption.
SECTION 7.02. SERVICER'S INDEMNITIES.
The Servicer shall defend and indemnify the Trust Fund, the Trustee, the
Certificate Administrator, the Certificate Registrar, the Paying Agent, the
Contract Sellers and the Certificateholders against any and all costs, expenses,
losses, damages, claims or liabilities, including reasonable fees and expenses
of counsel and expenses of litigation, arising from third party claims or
actions (including penalties or fees imposed by any governmental or regulatory
body or agency) in respect of any action taken by the Servicer with respect to
any Contract or Manufactured Home constituting a failure by the Servicer to
perform its obligations under this Agreement. This indemnity shall survive any
Event of Default (but a Servicer's obligations under this Section 7.02 shall not
relate to any actions of any subsequent Servicer after an Event of Default) and
any payment of the amount owing under, or any repurchase by the Contract Seller
of, any such Contract.
SECTION 7.03. OPERATION OF INDEMNITIES.
Indemnification under this Article VII shall include reasonable fees and
expenses of counsel and expenses of litigation. Any amounts received by the
Trustee from the Servicer pursuant to this Article VII shall be deposited in the
Certificate Account pursuant to Section 4.05. If the Servicer has made any
indemnity payments to the Trustee pursuant to this Article VII and the Trustee
thereafter collects any of such amounts from others, the Trustee will repay such
amounts collected to the Servicer, together with any interest collected thereon.
SECTION 7.04. MERGER OR CONSOLIDATION OF THE CONTRACT SELLERS OR THE
SERVICER.
The Contract Sellers and the Servicer will each keep in full effect their
existence, rights and franchises as a national banking association or federal
savings bank, as the case may be, and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Contracts and
to perform its duties under this Agreement.
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Any Person into which either Contract Seller or the Servicer may be merged
or consolidated, or any corporation or association resulting from any merger,
conversion or consolidation to which such Contract Seller or the Servicer shall
be a party, or any Person succeeding to the business of such Contract Seller or
the Servicer, shall be the successor of such Contract Seller or the Servicer
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; PROVIDED, HOWEVER, that the successor or surviving Person to
the Servicer shall satisfy the requirements of Section 7.07 with respect to the
qualifications of a successor to the Servicer. Each Contract Seller and the
Servicer shall promptly notify each Rating Agency of any such merger to which it
is a party.
SECTION 7.05. LIMITATION ON LIABILITY OF THE CONTRACT SELLERS, THE
SERVICER AND OTHERS.
Neither of the Contract Sellers, the Servicer nor any of their directors,
officers, employees or agents shall be under any liability to the Trustee or the
Certificateholders for any errors in judgment or any action taken or for
refraining from the taking of any action, pursuant to this Agreement; PROVIDED,
HOWEVER, that this provision shall not protect either Contract Seller or any
such Person against any liability that would otherwise be imposed by reason of
its willful misconduct, or gross negligence; PROVIDED, FURTHER that this
provision shall not protect the Servicer or any such Person against any
liability that would otherwise be imposed by reason of its willful misconduct or
gross negligence. Each Contract Seller, the Servicer and any of their
directors, officers, employees or agents may rely on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. Neither of the Contract Sellers nor the Servicer shall be
under any obligation to appear in, prosecute or defend any legal action which
arises under this Agreement (other than in connection with the enforcement of
any Contract in accordance with this Agreement) and which in its opinion may
involve it in any expenses or liability; PROVIDED, HOWEVER, that the Servicer
may in its discretion undertake any such other legal action which it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto. In such event, the legal expenses and costs of such other
legal action and any liability resulting therefrom shall be expenses, costs and
liabilities payable from the Certificate Account, and the Servicer shall be
entitled to be reimbursed therefor out of the Certificate Account as provided by
Section 5.03.
SECTION 7.06. ASSIGNMENT BY SERVICER.
The Servicer may, with the prior written consent of the Contract Sellers,
which consent shall not be unreasonably withheld, assign its rights and delegate
its duties and obligations under this Agreement; PROVIDED that the Person
accepting such assignment or delegation shall be a Person which is satisfactory
to the Trustee and the Contract Sellers, in their respective sole judgment,
shall be willing to service the Contracts, and shall execute and deliver to the
Contract Sellers and the Trustee an agreement, in form and substance reasonably
satisfactory to the Contract Sellers and the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Servicer under
this Agreement; and FURTHER PROVIDED that each Rating Agency's
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rating of any Class of the Certificates in effect immediately prior to such
assignment and delegation will not be withdrawn or reduced as a result of such
assignment and delegation, as evidenced by a letter from each Rating Agency. In
the case of any such assignment and delegation, the Servicer shall be released
from its obligations under this Agreement, except that the Servicer shall remain
liable for all liabilities and obligations incurred by it as Servicer hereunder
prior to the satisfaction of the conditions to such assignment and delegation
set forth in the next preceding sentence.
SECTION 7.07. SUCCESSOR TO THE SERVICER.
In connection with the termination of the Servicer's responsibilities and
duties under this Agreement pursuant to Section 8.01, the Trustee shall
(i) succeed to and assume all of the Servicer's responsibilities, rights, duties
and obligations under this Agreement (except the duty to pay and indemnify the
Trustee pursuant to Section 9.05 hereof), or (ii) with the consent of the
Contract Sellers, which consent shall not be unreasonably withheld, appoint a
successor which shall have a net worth of not less than $50,000,000 and shall
have serviced for at least one year prior to such appointment a portfolio of not
less than $100,000,000 principal balance of manufactured housing installment
sale contracts or installment loans and which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Servicer under
this Agreement prior to the termination of the Servicer's responsibilities,
duties and liabilities under this Agreement (except that the duty to pay and
indemnify the Trustee pursuant to Section 9.05 hereof shall be subject to
negotiation at the time of such appointment). If the Trustee has become the
successor to the Servicer in accordance with this Section 7.07, the Trustee may,
if it shall be unwilling to continue to so act, or shall, if it is unable to so
act, appoint, or petition a court of competent jurisdiction to appoint, a
successor satisfying the requirements set out in clause (ii) above. In
connection with any appointment of a successor Servicer, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Contracts as it and such successor shall agree or such court shall determine;
PROVIDED, HOWEVER, that the Monthly Servicing Fee shall not be in excess of a
monthly amount equal to 1/12th of the product of 1% and the Pool Scheduled
Principal Balance for the Distribution Date in respect of which such
compensation is being paid without the consent of all of the Certificateholders
and notice to each Rating Agency. If the Servicer's duties, responsibilities
and liabilities under this Agreement should be terminated pursuant to
Section 7.06 or 8.01, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, shall
cooperate with the Trustee and any successor Servicer in effecting the
termination of the Servicer's responsibilities and rights hereunder, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The assignment by a Servicer pursuant to
Section 7.06 or removal of Servicer pursuant to Section 8.01 shall not become
effective until a successor shall be appointed pursuant to this Section 7.07 and
shall in no event relieve either Contract Seller of liability pursuant to
Section 3.05 for breach of the representations and warranties made pursuant to
Section 3.02 or 3.03. The Servicer being terminated pursuant to Section 8.01 or
Section 7.06 shall bear all costs of a transfer of servicing therefrom,
including but not limited to those of the Trustee reasonably
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allocable to specific employees and overhead, legal fees and expenses, and costs
of amending the Agreement, if necessary.
Any successor appointed as provided herein shall execute, acknowledge and
deliver to the Servicer and to the Trustee an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement
and the Certificates. Any assignment by or termination of the Servicer pursuant
to Section 7.06 or 8.01 or the termination of this Agreement pursuant to
Section 10.01 shall not affect any claims that the Trustee may have against the
Servicer arising prior to any such termination or resignation.
The Servicer shall timely deliver to the successor the funds in the
Certificate Account and REO Account and all Contract Files and related documents
and statements held by it hereunder and the Servicer shall account for all funds
and shall execute and deliver such instruments and do such other things as
reasonably may be required to more fully and definitely vest and confirm in the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer. Without limitation, the Trustee is authorized and
empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments (including transfer
instruments in respect of certificates of title and financing statements
relating to the Manufactured Homes), and to do any and all acts or things
necessary or appropriate to effect the purposes of such notice of termination.
Upon a successor's acceptance of appointment as such, the Trustee
shall notify in writing the Certificateholders and each Rating Agency of such
appointment.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT.
In case one or more of the following Events of Default shall occur and be
continuing, that is to say:
(a) any failure by the Servicer to make any deposit or payment, or to
remit to the Trustee any payment, required to be made under the terms of this
Agreement which continues unremedied for a period of five days after the date
upon which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Trustee or either Contract Seller
or to the Servicer, the Trustee and the Contract Sellers by the Holders of
Certificates evidencing Fractional Interests aggregating not less than 25%; or
(b) failure on the part of the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement, including the failure to deliver a Monthly
Report, which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Trustee or either Contract Seller or to
the Servicer, the Trustee and the Contract Sellers by the Holders of
Certificates evidencing Fractional Interests aggregating not less than 25%; or
(c) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law or appointing a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer, and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(d) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Servicer or
of or relating to all or substantially all of the Servicer's property; or
(e) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations or
take any corporate action in furtherance of the foregoing;
then, and in each and every such case, so long as such Event of Default shall
not have been cured or waived, the Trustee may, and, the Trustee shall at the
written direction of the Holders of Certificates evidencing Fractional Interests
aggregating not less than 51% by notice in writing to the Servicer, terminate
all the rights and obligations of the Servicer under this Agreement and in
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and to the Contracts and the proceeds thereof, except any responsibility for its
acts or omissions during its tenure as Servicer hereunder. The Trustee shall
send a copy of a notice of any Event of Default to each Rating Agency. On or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement, whether with respect to the
Contracts or otherwise, shall pass to and be vested in the successor appointed
pursuant to Section 7.07. Upon the occurrence of an Event of Default which
shall not have been remedied, the Trustee may also pursue whatever rights it may
have at law or in equity to damages, including injunctive relief and specific
performance. The Trustee will have no obligation to take any action or
institute, conduct or defend any litigation under this Agreement at the request,
order or direction of any of the Certificateholders unless such
Certificateholders have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which the Trustee may incur.
SECTION 8.02. WAIVER OF DEFAULTS.
The Holders of Certificates evidencing Fractional Interests aggregating not
less than 25% may waive any default by the Servicer in the performance of its
obligations hereunder and its consequences, except that a default in the making
of any required remittance to the Trustee for distribution on any of the
Certificates may be waived only by the affected Certificateholders. Upon any
such waiver of a past default, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
SECTION 8.03. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time the Servicer receives a notice of termination
pursuant to Section 8.01, the Trustee or its appointed agent shall be the
successor in all respects to the Servicer as provided in Section 7.07 hereof.
Notwithstanding the above, or anything in Section 7.07 to the contrary, the
Trustee, if it becomes Servicer pursuant to this Section, shall have no
responsibility or obligation (i) to repurchase or substitute any Contract,
(ii) for any representation or warranty of the Servicer hereunder, and (iii) for
any act or omission of either a predecessor or successor Servicer other than the
Trustee. The Trustee may conduct any activity required of it as Servicer
hereunder through an Affiliate or through an agent. Neither the Trustee nor any
other successor Servicer shall be deemed to be in default hereunder due to any
act or omission of a predecessor Servicer, including but not limited to failure
to timely deliver to the Trustee any Monthly Report, any funds required to be
deposited to the Trust Fund, or any breach of its duty to cooperate with a
transfer of servicing as required by Section 7.07.
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SECTION 8.04. NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any such termination pursuant to Section 8.01, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
SECTION 8.05. EFFECT OF TRANSFER.
(a) After a transfer of servicing duties to a successor Servicer pursuant
to Section 7.04, 7.06, 7.07 or 8.01, the Trustee or the successor Servicer may
notify Obligors to make payments that are due under the Contracts after the
effective date of the transfer of servicing duties directly to the successor
Servicer.
(b) After the transfer of servicing duties to a successor Servicer
pursuant to Section 7.04, 7.06, 7.07 or 8.01, the replaced Servicer shall have
no further obligations with respect to the management, administration, servicing
or collection of the Contracts, but in the case of a transfer pursuant to
Section 7.07 or 8.01 shall remain liable for any liability arising from the
replaced Servicer's actions hereunder and shall remain entitled to any
compensation due the replaced Servicer that had already accrued prior to such
transfer.
(c) A transfer of servicing duties to a successor Servicer shall not
affect the rights and duties of the parties hereunder (including but not limited
to the indemnities of the Servicer pursuant to Article VII), other than those
relating to the management, administration, servicing or collection of the
Contracts.
SECTION 8.06. TRANSFER OF THE ACCOUNTS.
Notwithstanding the provisions of Section 8.01, if the Certificate Account
shall be maintained with the Servicer or an Affiliate of the Servicer and an
Event of Default shall occur and be continuing, the Servicer, after five days'
written notice from the Trustee, or in any event within ten days after the
occurrence of the Event of Default, shall establish a new account, which shall
be an Eligible Account, conforming with the requirements of this Agreement, at
the trust department of the Trustee or with a depository institution other than
the Servicer or an Affiliate of the Servicer, and shall promptly transfer all
funds in the Certificate Account to such new Certificate Account, which shall
thereafter be deemed the Certificate Account for the purposes hereof.
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ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01. DUTIES OF TRUSTEE.
The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred, undertakes
to perform such duties and only such duties as are set forth specifically in
this Agreement. In case an Event of Default has occurred of which a Responsible
Officer has knowledge (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs,
unless it is acting as Servicer pursuant to Section 8.03 in which case it will
use the same degree of care and skill as the Servicer.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are required specifically to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own misconduct; PROVIDED, HOWEVER, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may rely conclusively, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement;
(ii) The Trustee shall not be liable personally for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable personally with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates evidencing
Fractional Interests aggregating not less than 25% as to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Agreement.
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None of the provisions contained in this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties as Trustee hereunder or in the exercise of
any of its rights or powers if there is reasonable ground for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
The Trustee shall have no liability for any loss on any Eligible Investment
except and only to the extent that it is an Obligor thereon.
SECTION 9.02. CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 9.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) The Trustee may consult with counsel, and any written advice of its
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(c) The Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction of
any of the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
(d) The Trustee shall not be liable personally for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the computations, facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, any Monthly Report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by the Holders of
Certificates evidencing Fractional Interests aggregating not less than 25%;
PROVIDED, HOWEVER, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or liability
as a condition to
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such proceeding. The reasonable expense of every such examination shall be paid
by the Servicer, if an Event of Default shall have occurred and is continuing,
and otherwise by the Certificateholders requesting the investigation;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys; PROVIDED, HOWEVER, that any Affiliate of either Contract Seller may
only perform ministerial or custodial duties hereunder as agent for the Trustee;
and
(g) The Trustee shall examine any directions, notices or other
communications received from the Servicer, either Contract Seller or any
Certificateholder (or agent thereof) to determine if such directions, notices or
other communications appear on their face to have been made and to otherwise be
in accordance with the requirements of this Agreement. As long as the Trustee
has acted in good faith and has not been negligent in making determinations
required by this Section 9.02(g), the Trustee may conclusively rely on such
directions, notices or other communications and shall incur no liability
hereunder for complying with, or assuming the truth of the statements contained
in, any such direction, notice or other communication.
SECTION 9.03. TRUSTEE NOT LIABLE FOR CERTIFICATES OR CONTRACTS.
The recitals contained herein and in the Certificates (other than the
authentication of the Certificates) shall be taken as the statements of the
Contract Sellers or the Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations or
warranties as to the validity or sufficiency of this Agreement, of the
Certificates (except that the Certificates shall be duly and validly
authenticated by it) or of any Contract or related document. The Trustee shall
not be accountable for the use or application by either Contract Seller or the
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to either Contract Seller or the
Servicer in respect of the Contracts or deposited in or withdrawn from the
Certificate Account by either Contract Seller or the Servicer.
SECTION 9.04. TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates and may transact business with the other parties hereto
with the same rights it would have if it were not Trustee.
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SECTION 9.05. SERVICER TO PAY FEES AND EXPENSES OF TRUSTEE, PAYING
AGENT AND CERTIFICATE ADMINISTRATOR.
The Servicer covenants and agrees to pay, from its own funds, to the
Trustee, the Paying Agent and the Certificate Administrator from time to time,
and the Trustee, the Paying Agent and the Certificate Administrator shall each
be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by it in the execution of the trust hereby created and
in the exercise and performance of any of the powers and duties hereunder of the
Trustee, and the Servicer will pay (out of its own funds) or reimburse the
Trustee, the Paying Agent and the Certificate Administrator, to the extent
requested by the Trustee, the Paying Agent or the Certificate Administrator, as
the case may be, for all reasonable expenses, disbursements and advances
incurred or made by the Trustee, the Paying Agent or the Certificate
Administrator, as the case may be, in accordance with any of the provisions of
this Agreement, and the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ, and
the expenses incurred by the Trustee in connection with the appointment of an
office or agency pursuant to Section 9.11, except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Servicer also
covenants and agrees to indemnify (out of its own funds) the Trustee, the Paying
Agent and the Certificate Administrator for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee, the Paying Agent or the Certificate Administrator,
as the case may be, arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
covenants in this Section 9.05 shall be for the benefit of the Trustee, the
Paying Agent and the Certificate Administrator in their respective capacities as
Trustee, Certificate Administrator, Paying Agent and Certificate Registrar
hereunder, and shall survive the termination of this Agreement.
SECTION 9.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
There shall at all times be a Trustee hereunder which shall be qualified to
maintain an Eligible Account and shall be either (a) The First National Bank of
Chicago ("First National") or any other Person into which First National is
merged or consolidated or to which substantially all of the properties and
assets of First National are transferred as an entirety, PROVIDED that such
other Person has accepted appointment as Trustee under this Agreement in
accordance with this Article IX, and FURTHER PROVIDED that such entity is not an
Affiliate of either Contract Seller, is authorized to exercise corporate trust
powers under the laws of the United States of America, any State thereof or the
District of Columbia and has all necessary trust powers to perform its
obligations hereunder, or (b) a corporation or banking association organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by Federal or State authority, and which
is not an Affiliate of either Contract Seller; FURTHER PROVIDED that either such
entity has long-term debt rated at least investment grade by each Rating Agency
or each Rating
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Agency provides a letter to the effect that such appointment will not affect the
then current ratings of the Certificates. If the corporation or banking
association referred to in clause (b) of the previous sentence publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 9.06,
the combined capital and surplus of such corporation or banking association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In addition, the Trustee shall
maintain an office in New York. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.06, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article IX.
SECTION 9.07. RESIGNATION AND REMOVAL OF THE TRUSTEE.
The Trustee at any time may resign and be discharged from the trusts hereby
created by giving written notice thereof to the Contract Sellers, the Servicer
and each Rating Agency. Upon receiving such notice of resignation, the Contract
Sellers shall promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 9.06 and shall fail to resign after written request
therefor by the Contract Sellers, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Contract
Sellers may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee and the
Certificateholders.
The Holders of Certificates evidencing Fractional Interests aggregating not
less than 50% may remove the Trustee at any time and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such
Certificateholders or their attorneys-in-fact duly authorized, one complete set
of which instruments shall be delivered to each Contract Seller, one complete
set to the Trustee so removed and one complete set to the successor so
appointed.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 9.07 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 9.08.
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SECTION 9.08. SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 9.07 shall execute,
acknowledge and deliver to the Contract Sellers and to its predecessor trustee,
with a copy to the Servicer, an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee and the
appointment of such successor trustee shall become effective, and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall execute and deliver such instruments and do such other
things as reasonably may be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations.
No successor trustee shall accept appointment as provided in this Section
9.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 9.06.
Upon acceptance of appointment by a successor trustee as provided in this
Section 9.08, the Servicer shall mail notice of the succession of such trustee
hereunder to all Certificateholders at their addresses as shown in the
Certificate Register, to the Contract Sellers and each Rating Agency. If the
Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Contract Sellers.
SECTION 9.09. MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, PROVIDED such corporation shall be eligible under the
provisions of Section 9.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. Upon succession of a successor trustee as provided in
this Section 9.09, the successor Trustee shall mail notice of the succession of
such trustee hereunder to all Certificateholders at their addresses as shown in
the Certificate Register, to the Servicer and each Rating Agency.
SECTION 9.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions hereof, at any time, for the purpose
of (i) meeting any legal requirements of any jurisdiction in which any part of
the Trust Fund or property securing the same may be located at the time, or
(ii) meeting any legal requirements with respect to the holding of the
Contracts, the Contract Sellers and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity, such
title to the Trust Fund, or any part thereof, and, subject to the other
provisions of
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this Section 9.10, such powers, duties, obligations, rights and trusts as the
Contract Sellers and the Trustee may consider necessary or desirable. If either
Contract Seller shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 9.06
hereunder, and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 9.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that, under any law of any jurisdiction in which any particular
act or acts are to be performed or under any regulation applicable to any of the
Contracts (whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, appoint the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee. Nothing in this Section 9.10 shall relieve the Trustee of
its duties, obligations or liabilities under this Agreement.
SECTION 9.11. APPOINTMENT OF OFFICE OR AGENCY.
The Trustee will appoint an office or agency in the City of New York where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee initially designates Chicago Trust Company of New York, located at
14 Wall Street, New York, New York, for such purpose. The Certificate Register
will be kept in Chicago, Illinois at the offices of the Certificate Registrar
located at the Corporate Trust Office and may be kept in an electronic form
capable of
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printing out a hard copy of the Certificate Register. The Trustee will maintain
an office at the address stated in Section 11.05 hereof where notices and
demands to or upon the Trustee in respect of the Certificates may be served.
The Trustee will give prompt written notice to Certificateholders of any change
in the location of the Certificate Register or any such office or agency.
SECTION 9.12. CERTIFICATE ADMINISTRATOR.
The Trustee may, from time to time, appoint a Certificate Administrator for
the purpose of performing, as the Trustee's agent, those duties hereunder that
are specifically designated herein as performable by the Certificate
Administrator; PROVIDED, HOWEVER, that the Certificate Administrator shall at
all times satisfy the eligibility requirements of a Trustee set forth in Section
9.06. As of the Closing Date, the Trustee shall be the Certificate
Administrator unless and until the Trustee appoints a successor Certificate
Administrator. In performing its duties hereunder, the Certificate
Administrator (if not the Trustee) shall have the benefit of the provisions of
this Agreement to the same extent that the Trustee would have the benefit of
such provisions if the Trustee were itself performing such duties. The
Certificate Administrator (including the Trustee solely in its capacity as
Certificate Administrator) shall not have any fiduciary responsibility to either
Contract Seller, the Servicer or the Certificateholders except when acting as
Paying Agent. Additionally, the Certificate Administrator shall be entitled to
rely upon all directions, calculations and other information received by either
Contract Seller, the Trustee or the Servicer without any duty to independently
verify such directions, calculations or other information.
SECTION 9.13. APPOINTMENT OF PAYING AGENT.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 5.02 and payments
pursuant to 3.17 and 9.01(c). Any Paying Agent or its parent company so
appointed either shall be a bank or trust company and shall have a rating
acceptable to each Rating Agency. In the event of any such appointment, on or
prior to each Distribution Date, the Trustee shall deposit or cause to be
deposited with the Paying Agent, from amounts in the Certificate Account, a sum
sufficient to make the payments to Certificateholders in the amounts and in the
manner provided for in Section 5.02, such sum to be held in trust for the
benefit of the Certificateholders. The Trustee is hereby initially appointed as
Paying Agent.
In performing its duties hereunder, the Paying Agent shall have the benefit
of the provisions of this Agreement to the same extent that the Trustee would
have the benefit of such provisions if the Trustee were itself performing such
duties. Additionally, the Paying Agent shall be entitled to rely upon all
information received from the Servicer without any duty to independently verify
or recalculate any such information.
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The Trustee shall cause the Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent is at all times acting as agent for the Trustee and such
Paying Agent will hold all sums held by it for the payment to Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
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ARTICLE X
TERMINATION
SECTION 10.01. TERMINATION.
(a) The respective obligations and responsibilities of either
Contract Seller, the Servicer (except as to Section 9.05) and the Trustee shall
terminate upon the earlier of: (i) the final payment or other liquidation (or
any advance with respect thereto) of the last Contract or the disposition of all
property acquired upon repossession of any Contract and the remittance of all
funds due hereunder; (ii) at the option of the Servicer, on any Distribution
Date after the first Distribution Date on which the Pool Scheduled Principal
Balance is less than 5% of the Cut-off Date Pool Principal Balance, upon the
purchase by the Servicer of the Outstanding Contracts at a price equal to the
greater of (a) the sum of (x) 100% of the Scheduled Principal Balance of each
Contract (other than any Contract as to which the related Manufactured Home has
been acquired and not yet disposed of and whose fair market value is included
pursuant to Clause (y) below) as of the final Distribution Date, and (y) the
fair market value of such acquired property (as determined by the Servicer as of
the close of business on the third Business Day next preceding the date upon
which notice of any such termination is furnished to Certificateholders pursuant
to Section 10.01(c)(i)), and (b) the aggregate fair market value (as determined
by the Servicer as of the close of business on such third Business Day) of all
the assets in the Trust Fund, plus, in the case of both clause (a) and clause
(b), an amount sufficient to reimburse any Class A-1 Unpaid Interest Shortfall,
Class A-2 Unpaid Interest Shortfall, Class A-3 Unpaid Interest Shortfall, Class
A-4 Unpaid Interest Shortfall, Class A-5 Unpaid Interest Shortfall, Class A-6
Unpaid Interest Shortfall, Class A-7 Unpaid Interest Shortfall, Class B-1 Unpaid
Interest Shortfall, and any Class B-2 Unpaid Interest Shortfall; PROVIDED, that
the purchase price of such Contracts shall in no event be less than the Minimum
Termination Amount as of the Distribution Date on which the Servicer purchases
such Contracts; or (iii) the sale of all Contracts that remain outstanding,
pursuant to a Termination Auction as contemplated by Section 10.01(b) below.
Notwithstanding anything herein to the contrary, in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late ambassador of
the United States to the court of St. James, living on the date hereof.
(b) TERMINATION AUCTION. The Trustee shall, in accordance with the
procedures and schedule set forth in Exhibit L hereto (the "Auction Procedures")
and upon written notice from the Servicer, make a commercially reasonable effort
to sell at fair market value in a commercially reasonable manner and upon
commercially reasonable terms, by conducting an auction (the "Termination
Auction") of the Contracts remaining in the Trust Fund in order to effect a
termination of the Trust Fund on a date selected by the Trustee (the "Auction
Date"), but in any case within ninety days following the Distribution Date as of
which the Pool Scheduled Principal Balance is less than 10% of the Cut-off Date
Pool Principal Balance. The Contract Sellers (and the Servicer if BankAmerica
Housing Services is not the Servicer) may, but shall not be required to, bid at
the Termination Auction; PROVIDED, that Bank of America or any subsidiary
thereof shall not be entitled to bid on or acquire any Contracts in the Trust
Fund that were conveyed to the
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Trust Fund by it unless Bank of America is permitted to do so under applicable
banking laws and regulations, as evidenced by an Opinion of Counsel addressed
to the Trustee to such effect. The Trustee shall be entitled to retain counsel
of its choice to represent it in the Termination Auction, and the fees and
expenses of such counsel shall be paid by the Contract Sellers. The Trustee
shall sell and transfer the Contracts to the highest bidder therefor at the
Termination Auction provided that:
(1) the Termination Auction has been conducted in
accordance with the Auction Procedures;
(2) the Trustee has received good faith bids for the
Contracts from at least two prospective purchasers that are considered
by the Trustee, in its sole discretion, to be competitive participants
in the market for manufactured housing installment sale contracts;
PROVIDED, that at least one of such prospective purchasers shall not
be an Affiliate of either of the Contract Sellers;
(3) a financial advisor selected by the Trustee, the
fees of whom shall be an expense of the Contract Sellers, as advisor
to the Trustee (in such capacity, the "Advisor"), shall have advised
the Trustee in writing that at least two of such bidders are
participants in the market for manufactured housing retail installment
sale contracts and are willing and able to purchase the Contracts (the
Trustee may in its discretion select itself or an affiliate thereof as
Advisor);
(4) the highest bid in respect of the Contracts is not
less than the aggregate fair market value of the Contracts (as
determined by the Trustee in its sole discretion);
(5) any bid submitted by the Contract Sellers or any
Affiliate of either of them shall be independently verified and
represented in writing by a qualified independent third party
evaluator (which may include the Advisor or an investment banking
firm) selected by the Trustee and may only be considered if such
evaluator determines that the bid reasonably represents the fair
market value of the Contracts;
(6) the highest bid would result in proceeds from the
sale of the Contracts which will be at least equal to the Minimum
Termination Amount;
(7) such sale and consequent termination of the Trust
Fund must constitute a "qualified liquidation" of the Trust Fund under
Section 860F of the Code, including the requirement that such
qualified liquidation take place over a period not to exceed 90 days
(the Trustee may, in its discretion require that the purchaser of such
Contracts provide an Opinion of Counsel to that effect); and
(8) the terms of the Termination Auction must be made
available to all bidders and must stipulate that the Servicer be
retained to service the Contracts on terms substantially similar to
those in this Agreement.
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Provided that all of the conditions set forth in clauses (1) through
(8) have been met, the Trustee shall sell and transfer the Contracts, without
representation, warranty or recourse of any kind whatsoever, to such highest
bidder in accordance with and upon completion of the Auction Procedures. The
Trustee shall deposit the purchase price for the Contracts in the Certificate
Account at least one Business Day prior to the fourth Distribution Date
following the Distribution Date as of which the Pool Scheduled Principal Balance
is less than 10% of the Cut-off Date Pool Principal Balance. The provisions of
subsections (c) and (d) of this Section 10.01 also shall apply with respect to
any Termination Auction. In the event that any of such conditions are not met
or such highest bidder fails or refuses to comply with any of the Auction
Procedures, the Trustee shall decline to consummate such sale and transfer. In
such case the Termination Auction shall be concluded and the Trustee shall be
under no further duty to solicit bids for or otherwise to attempt to sell the
Contracts.
(c) (i) Notice of any termination, specifying the Distribution Date
upon which all Certificateholders may surrender their Certificates to the
Trustee for payment and cancellation, shall be given promptly by the Servicer by
letter to the Certificateholders, the Trustee, the Contract Sellers and each
Rating Agency mailed no later than the 10th day of the month next preceding the
month of such final distribution, specifying (i) the Distribution Date upon
which final payment on the Certificates will be made upon presentation and
surrender of Certificates at the office or agency of the Trustee therein
designated, (ii) the amount of any such final payment, and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein specified. After giving such notice,
the Trustee shall not register the transfer or exchange of any Certificates. If
such notice is given in connection with the Servicer's election to purchase, the
Servicer shall deposit in the Certificate Account on the Business Day prior to
the applicable Distribution Date the amount described in Section 10.01(a)(ii).
The amount so deposited shall not be invested.
(ii) Upon presentation and surrender of the Certificates,
the Trustee shall cause to be distributed, from funds in the
Certificate Account, to Certificateholders, in proportion to their
respective Percentage Interests, an amount equal to (a) as to the
Class A-1 Certificates, the Class A-1 Certificate Balance together
with the Class A-1 Unpaid Interest Shortfall and one month's interest
at the Class A-1 Pass-Through Rate on the Class A-1 Certificate
Balance, (b) as to the Class A-2 Certificates, the Class A-2
Certificate Balance together with the Class A-2 Unpaid Interest
Shortfall and one month's interest at the Class A-2 Pass-Through Rate
on the Class A-2 Certificate Balance, (c) as to the Class A-3
Certificates, the Class A-3 Certificate Balance together with the
Class A-3 Unpaid Interest Shortfall and one month's interest at the
Class A-3 Pass-Through Rate on the Class A-3 Certificate Balance, (d)
as to the Class A-4 Certificates, the Class A-4 Certificate Balance
together with the Class A-4 Unpaid Interest Shortfall and one month's
interest at the Class A-4 Pass-Through Rate on the Class A-4
Certificate Balance, (e) as to the Class A-5 Certificates, the
Class A-5 Certificate Balance together with the Class A-5 Unpaid
Interest Shortfall and one month's interest at the Class A-5
Pass-Through Rate on the Class A-5 Certificate Balance (f), as to the
Class A-6 Certificates, the Class A-6 Certificate Balance together
with the Class A-6 Unpaid Interest Shortfall and one month's
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interest at the Class A-6 Pass-Through Rate on the Class A-6
Certificate Balance, (g) as to the Class A-7 Certificates, the Class
A-7 Certificate Balance together with the Class A-7 Unpaid Interest
Shortfall and one month's interest at the Class A-7 Pass-Through Rate
on the Class A-7 Certificate Balance, (h) as to the Class B-1
Certificates, the Class B-1 Certificate Balance together with the
Class B-1 Unpaid Interest Shortfall and one month's interest at the
Class B-1 Pass-Through Rate on the Class B-1 Certificate Balance and
(i) as to the Class B-2 Certificates, the Class B-2 Certificate
Balance together with the Class B-2 Unpaid Interest Shortfall and one
month's interest at the Class B-2 Pass-Through Rate on the Class B-2
Certificate Balance.
(iii) Upon such termination, any amounts remaining in
the Certificate Account and the Reserve Account (other than amounts
retained to meet claims) shall be paid to the Class R
Certificateholders. Following such final deposit, the Servicer shall
prepare and the Trustee shall execute all assignments, endorsements
and other instruments necessary to effectuate such transfer. The
distribution on the final Distribution Date shall be in lieu of the
distribution otherwise required to be made on such Distribution Date
in respect of the Certificates and the Class R Certificate.
(d) If any Certificateholder does not surrender its Certificate for
cancellation by the final Distribution Date specified in the written notice
required in Section 10.01(c)(i), any amounts retained in the Certificate Account
that are owed to such Certificateholder shall be withdrawn from the Certificate
Account and held in an escrow account with the Trustee pending distribution
pursuant to this Section 10.01(d). Any amounts so held shall not be invested.
The Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within two years after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Trustee shall so notify the Contract Sellers and the Contract
Sellers may take appropriate steps, or may appoint an agent to take appropriate
and reasonable steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of, and
only to the extent of, the funds and other assets which remain in trust
hereunder.
Upon any termination pursuant to the exercise of the purchase option
contained in Section 10.01(a)(ii), the consummation of a sale pursuant to a
Termination Auction or otherwise, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee has
received an Opinion of Counsel to the effect that the failure of the Trust Fund
to comply with the requirements of this Section 10.01 will not (i) result in the
imposition of taxes on "prohibited transactions" of the Trust Fund as described
in Section 860F of the Code, (ii) cause the Trust Fund to fail to qualify as a
REMIC at any time that any Certificates are outstanding, or (iii) result in the
imposition of taxes on contributions of additional assets to the Trust Fund
under Section 860G(d) of the Code:
(i) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Servicer or the Trustee under this Section
10.01, the Holders of the Class R Certificates shall adopt a plan of
complete liquidation of the Trust Fund;
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(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Servicer as
agent of the Trustee shall sell all of the assets of the Trust Fund to the
purchaser thereof (which may be the Servicer) for cash (other than assets
that will be converted to cash prior to the final Distribution Date); and
(iii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date, the
Trustee shall credit or distribute all proceeds of the liquidation (plus
the cash), less assets retained to meet claims, to the Certificateholders.
By its acceptance of a Class R Certificate, each Holder thereof hereby agrees to
adopt such a plan of complete liquidation upon the written request of the
Servicer and to take such other action in connection therewith as may be
reasonably requested by either Contract Seller.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. AMENDMENT.
This Agreement may be amended from time to time by the Contract Sellers,
the Servicer and the Trustee without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions herein, (iii) to add to the duties or obligations of the Servicer,
(iv) to obtain a rating from a nationally recognized rating agency or to
maintain or improve the ratings of any Class of Certificates by each Rating
Agency (it being understood that after obtaining ratings for the Certificates
from Moody's and Fitch, none of the Trustee, either Contract Seller or the
Servicer is obligated to obtain, maintain or improve any rating assigned to the
Certificates) or (v) to make such other provisions with respect to matters or
questions arising under this Agreement, as shall not be inconsistent with any
other provisions herein; PROVIDED that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder. Notwithstanding the foregoing, without the consent of
the Certificateholders, the Trustee, the Contract Sellers and the Servicer may
at any time and from time to time amend this Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary or appropriate
to maintain the qualification of the Trust Fund as a REMIC under the Code or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund
pursuant to the Code that would be a claim against the Trust Fund at any time
prior to the final redemption of the Certificates, provided that the Trustee has
been provided an Opinion of Counsel, which opinion shall be an expense of the
party requesting such opinion but in any case shall not be an expense of the
Trustee, to the effect that such action is necessary or appropriate to maintain
such qualification or to avoid or minimize the risk of the imposition of such a
tax.
This Agreement may also be amended from time to time by the Contract
Sellers, the Servicer and the Trustee with the consent of the Holders of a
Majority in Interest of each Class of Regular Certificates affected thereby for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Holders of Certificates; PROVIDED, HOWEVER, that no such amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
required to be distributed on any Certificate without the consent of the Holder
of such Certificate, (ii) adversely affect in any material respect the interests
of the Holders of any Class of Certificates in a manner other than as described
in (i), without the consent of the Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating 66% or
(iii) reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall be an expense of the party
requesting such amendment but in any case shall not be an expense of the
Trustee, to the effect that such amendment will not cause the imposition
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of any tax on the Trust Fund or the Certificateholders or cause the Trust Fund
to fail to qualify as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, satisfactory to the Trustee
that (i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 11.01.
SECTION 11.02. RECORDATION OF AGREEMENT; COUNTERPARTS.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Contracts are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Servicer at its expense.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
SECTION 11.03. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.04. CALCULATIONS.
Except as otherwise provided in this Agreement, all interest rate and basis
point calculations under this Agreement will be made on the basis of a 360-day
year and twelve thirty-
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day months and will be carried out to at least three decimal places. Interest
on the Regular Certificates with respect to a Distribution Date will accrue
during the one-month period beginning on the 10th day of the month preceding the
month of such Distribution Date and ending on the 9th day of the month of such
Distribution Date.
SECTION 11.05. NOTICES.
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been
cured;
3. The resignation or termination of the Servicer or the
Trustee and the appointment of any successor or any assignment of this Agreement
pursuant to Section 7.06;
4. The repurchase or substitution of Contracts pursuant to
Section 3.05;
5. The final payment to Certificateholders;
6. A sale of any Class R Certificate; and
7. Any shortfalls arising from the failure of the Servicer to
advance as required pursuant to Section 5.01 hereof.
In addition, the Servicer shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 5.07;
2. Each annual statement as to compliance described in Section
4.20; and
3. Each annual independent public accountants' servicing report
described in Section 4.21.
(b) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to (a) in the case of the
Contract Sellers: Bank of America National Trust and Savings Association, 555
California Street, San Francisco, California 94104, Attention: Assistant
General Counsel, Corporate Advice Group; BankAmerica Housing Services, 10089
Willow Creek Road, San Diego, California 92131, Attention: Manager, Investor
Servicing or such other address as each Contract Seller may hereafter furnish to
the Trustee and the Servicer (b) in the case of the Servicer, BankAmerica
Housing Services, 10089 Willow Creek Road, San Diego, California 92131,
Attention: Manager, Investor Servicing, or such other address as may be
hereafter furnished to the Contract Sellers and the Trustee by the Servicer in
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writing, (c) in the case of the Trustee, The First National Bank of Chicago, or
such other address as the Trustee may hereafter furnish to the Contract Sellers
and the Servicer; and (d) in the case of the Rating Agencies, (i) Moody's
Investors Service, Inc., 99 Church Street, New York, New York 10007 and
(ii) Fitch Investors Service, L.P., One State Street, New York, New York 10004.
Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
SECTION 11.06. SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Sections 7.04 and 7.06, this Agreement may not be assigned
by the Servicer without the prior written consent of the Trustee and the
Contract Sellers.
SECTION 11.08. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
Fund, or otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless
the Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request
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and offer of indemnity shall have neglected or refused to institute any such
action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 11.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.09. INSPECTION AND AUDIT RIGHTS.
The Servicer agrees that, on reasonable prior notice, it will permit any
representative of either Contract Seller or the Trustee during the Servicer's
normal business hours, to examine all the books of account, records, reports and
other papers of the Servicer relating to the Contracts, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Contract Sellers or the Trustee and to
discuss its affairs, finances and accounts relating to the Contracts with its
officers, employees and independent public accountants (and by this provision
the Servicer hereby authorizes such accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by the Contract Sellers or the Trustee of any right
under this Section 11.09 shall be borne by the party requesting such inspection;
all other such expenses shall be borne by the Servicer.
SECTION 11.10. CERTIFICATES NONASSESSABLE AND FULLY PAID.
It is the intention of the Contract Sellers that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 11.11. OFFICIAL RECORD.
Each of Bank of America and BankAmerica Housing Services, for itself,
agrees that this Agreement is and shall remain at all times prior to the time at
which this Agreement terminates an official record of Bank of America or
BankAmerica Housing Services, respectively, as referred to in Section 13(e) of
the Federal Deposit Insurance Act, as amended by 12 U.S.C. Section 1823(e). The
officer signing below on behalf of Bank of America or BankAmerica Housing
Services, respectively, represents that by so signing he or she is an officer of
Bank of America or BankAmerica Housing Services, respectively, of the level of
vice president or higher within the meaning of the "Policy Statement Regarding
Qualified Financial Contracts" dated December 12, 1989 issued by the FDIC.
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IN WITNESS WHEREOF, the Contract Sellers, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as
Trustee
By: /s/ Donna Fanning
---------------------------
Name: Donna Fanning
Title: Assistant Vice President
BANKAMERICA HOUSING SERVICES,
an unincorporated division of
BANK OF AMERICA, FSB,
as Servicer and Contract Seller
By: /s/ Shaun M. Maguire
---------------------------
Name: Shaun M. Maguire
Title: Assistant Treasurer
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Contract Seller
By: /s/ Shaun M. Maguire
---------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN FRANCISCO )
On the 11th day of June, 1996 before me, a notary public, in and for the
State of California, personally appeared Shaun M. Maguire, personally known
(or satisfactorily proven) to me to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same as
Assistant Treasurer of Bank of America, FSB (the "Bank"), on behalf of the Bank
and acknowledged to me that the Bank executed the within instrument pursuant to
its by-laws or a resolution of its board of directors and that by his signature
on the instrument the Bank executed the instrument.
WITNESS my hand and official seal.
/s/ Angelina H. L. Sun
----------------------------------------
Notary Public
My Commission expires December 23, 1997
-----------------
[Notarial Seal]
<PAGE>
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN FRANCISCO )
On the 11th day of June , 1996 before me, a notary public, in and
for the State of California, personally appeared Shaun M. Maguire, personally
known (or satisfactorily proven) to me to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same as
Senior Vice President of Bank of America, National Trust and Savings Association
(the "Bank"), on behalf of the Bank and acknowledged to me that the Bank
executed the within instrument pursuant to its by-laws or a resolution of its
board of directors and that by his signature on the instrument the Bank executed
the instrument.
WITNESS my hand and official seal.
/s/ Angelina H. L. Sun
---------------------------------------
Notary Public
My Commission expires December 23, 1997
-----------------
[Notarial Seal]
<PAGE>
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
On this 13th day of June, 1996, before me, a notary public in and
for said State, appeared Donna Fanning, personally known to me on the basis of
satisfactory evidence to be an Assistant Vice President, of The First National
Bank of Chicago, a national banking association that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Somsri Helmer
---------------------------------------
Notary Public
My Commission expires 1/14/99
----------
[Notarial Seal]
<PAGE>
EXHIBIT A-1
CONTRACT SCHEDULE - BANKAMERICA HOUSING SERVICES
Exhibit A-1
<PAGE>
EXHIBIT A-2
CONTRACT SCHEDULE - BANK OF AMERICA
Exhibit A-2
<PAGE>
EXHIBIT B-1
CLASS A-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No. : A-1-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $47,129,000.00
Initial Certificate Balance of all
Class A-1 Certificates : $_____________
Pass-Through Rate : 6.125%
Month of Last Scheduled
Distribution Date : October 2026
CUSIP : 065910AA9
Exhibit B-1-1
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class A-1 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-1
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1996 (the "Agreement"), among the Contract Sellers, BankAmerica Housing
Services, as servicer (the "Servicer"), and The First National Bank of Chicago,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-1 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-1 Certificate shall be applied first
to interest and then to principal.
Exhibit B-1-2
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-1
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June __, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
-----------------------------
Authorized Signatory
Exhibit B-1-3
<PAGE>
EXHIBIT B-2
CLASS A-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No. : A-2-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $______________
Initial Certificate Balance of all
Class A-2 Certificates : $51,893,000.00
Pass-Through Rate : 6.650%
Month of Last Scheduled
Distribution Date : October 2026
CUSIP : 065910AB7
Exhibit B-2-1
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class A-2 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-2
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1996 (the "Agreement"), among the Contract Sellers, BankAmerica Housing
Services, as servicer (the "Servicer"), and The First National Bank of Chicago,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-2 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-2 Certificate shall be applied first
to interest and then to principal.
Exhibit B-2-2
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-2
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June __, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
-----------------------------------
Authorized Signatory
Exhibit B-2-3
<PAGE>
EXHIBIT B-3
CLASS A-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No. : A-3-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $_____________
Initial Certificate Balance of all
Class A-3 Certificates : $20,316,000.00
Pass-Through Rate : 6.950%
Month of Last Scheduled
Distribution Date : October 2026
CUSIP : 065910AC5
Exhibit B-3-1
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class A-3 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-3
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1996 (the "Agreement"), among the Contract Sellers, BankAmerica Housing
Services, as servicer (the "Servicer"), and The First National Bank of Chicago,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-3 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-3 Certificate shall be applied first
to interest and then to principal.
Exhibit B-3-2
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-3
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June ___, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
-------------------------
Authorized Signatory
Exhibit B-3-3
<PAGE>
EXHIBIT B-4
CLASS A-4 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No. : A-4-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $_____________
Initial Certificate Balance of all
Class A-4 Certificates : $26,068,000.00
Pass-Through Rate : 7.300%
Month of Last Scheduled
Distribution Date : October 2026
CUSIP : 065910AD3
Exhibit B-4-1
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class A-4 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-4
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1996 (the "Agreement"), among the Contract Sellers, BankAmerica Housing
Services, as servicer (the "Servicer"), and The First National Bank of Chicago,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-4 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-4 Certificate shall be applied first
to interest and then to principal.
Exhibit B-4-2
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-4
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June __, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------
Authorized Signatory
Exhibit B-4-3
<PAGE>
EXHIBIT B-5
CLASS A-5 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No. : A-5-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $_____________
Initial Certificate Balance of all
Class A-5 Certificates : $28,483,000.00
Pass-Through Rate : 7.550%
Month of Last Scheduled
Distribution Date : October 2026
CUSIP : 065910AE1
Exhibit B-5-1
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class A-5 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-5
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1996 (the "Agreement"), among the Contract Sellers, BankAmerica Housing
Services, as servicer (the "Servicer"), and The First National Bank of Chicago,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-5 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-5 Certificate shall be applied first
to interest and then to principal.
Exhibit B-5-2
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-5
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June __, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-5 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
----------------------------
Authorized Signatory
Exhibit B-5-3
<PAGE>
EXHIBIT B-6
CLASS A-6 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No. : A-6-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $____________
Initial Certificate Balance of all
Class A-6 Certificates : $27,040,000.00
Pass-Through Rate : 8.000%
Month of Last Scheduled
Distribution Date : October 2026
CUSIP : 065910AF8
Exhibit B-6-1
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class A-6 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ____________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-6
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1996 (the "Agreement"), among the Contract Sellers, BankAmerica Housing
Services, as servicer (the "Servicer"), and The First National Bank of Chicago,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-6 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-6 Certificate shall be applied first
to interest and then to principal.
Exhibit B-6-2
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-6
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June __, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-6 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------
Authorized Signatory
Exhibit B-6-3
<PAGE>
EXHIBIT B-7
CLASS A-7 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN SHALL BE REGISTERED
UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES THE TRUSTEE, THE CONTRACT SELLERS AND
THE SERVICER (AS EACH SUCH TERM IS DEFINED HEREIN) WITH (A) A CERTIFICATE TO THE
EFFECT THAT SUCH TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT PLAN SUBJECT TO
SECTION 406 OR SECTION 407 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, THE TRUSTEE OF ANY SUCH
PLAN OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN NOR A PERSON USING THE ASSETS
OF ANY SUCH PLAN AND (2) IF SUCH TRANSFEREE IS AN INSURANCE COMPANY, IT IS
PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN WITH FUNDS CONTAINED IN AN
"INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(e) OF
THE PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AND THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE OR ANY INTEREST HEREIN IS COVERED UNDER
PTCE 95-60; OR (B) AN OPINION OF COUNSEL (A "BENEFIT PLAN OPINION") SATISFACTORY
TO THE TRUSTEE, THE CONTRACT SELLERS AND THE SERVICER, AND UPON WHICH THE
TRUSTEE, THE CONTRACT SELLERS AND THE SERVICER SHALL BE ENTITLED TO RELY, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR ANY INTEREST HEREIN
BY THE PROSPECTIVE TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA OR THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE CONTRACT
SELLERS OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY
SUCH ENTITIES IN THE
Exhibit B-7-1
<PAGE>
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE
CONTRACT SELLERS OR THE SERVICER. ANY OWNER OF A BENEFICIAL INTEREST IN THIS
CERTIFICATE WILL BE DEEMED TO MAKE THE REPRESENTATIONS IN CLAUSES (1) AND (2),
ABOVE.
THIS CLASS A-7 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN
Certificate No. : A-7-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $____________
Initial Certificate Balance of all
Class A-4 Certificates : $20,891,000.00
Pass-Through Rate : 7.800%
Month of Last Scheduled
Distribution Date : October 2026
CUSIP : 065910AG6
Exhibit B-7-2
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class A-7 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-7
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1996 (the "Agreement"), among the Contract Sellers, BankAmerica Housing
Services, as servicer (the "Servicer"), and The First National Bank of Chicago,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-7 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-7 Certificate shall be applied first
to interest and then to principal.
Exhibit B-7-3
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-7
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No Transfer of a Class A-7 Certificate shall be made unless the Trustee,
the Contract Sellers and the Servicer shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Trustee, the Contract Sellers and the
Servicer, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
or a Person acting on behalf of any such plan or using the assets of any such
plan, (ii) if such transferee is an insurance company, a representation that it
is purchasing such Class A-7 Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section v(e) of the
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificate are covered under PTCE 95-60 or such
other representation as is acceptable to the Contract Sellers and the Servicer
or (iii) in the case of any Class A-7 Certificate presented for registration in
the name of an employee benefit plan subject to ERISA, or a plan subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee, the
Contract Sellers and the Servicer to the effect that the purchase or holding of
such Class A-7 Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA and the Code and will not subject the Trustee, the Contract Sellers or
the Servicer to any obligation in addition to those expressly undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Trustee,
either Contract Seller or the Servicer. For purposes of clauses (i) and (ii) in
the preceding sentence, such representation shall be deemed to have been made to
the Trustee, the Contract Sellers and the Servicer by the transferee's
acceptance of such Class A-7 Certificates (or the acceptance by a Certificate
Owner of the beneficial interest in any such Class of Class A-7 Certificates)
unless the Trustee, the Contract Sellers and the Servicer shall have received
from the transferee an alternative representation acceptable in form and
substance to the Contract Sellers at the time of such acceptance, and the
Depository shall not make any such representation. Notwithstanding anything
else to the contrary herein, any purported transfer of a Class A-7 Certificate
to or on behalf of an employee benefit plan subject to Section 406 of ERISA or a
plan subject to Section 4975 of the Code without the delivery to the Trustee,
the Contract Sellers and the Servicer of an Opinion of Counsel satisfactory to
the Trustee, the Contract Sellers and the Servicer as described above shall be
void and of no effect; PROVIDED, HOWEVER, that the restriction set forth in this
sentence shall not be applicable if there has been delivered to the Trustee, the
Contract Sellers and the Servicer an Opinion of Counsel satisfactory to the
Trustee, the Contract Sellers and the Servicer to the effect that the purchase
or holding of a Class A-7 Certificate will not result in the assets of the Trust
Fund being deemed to be "plan
Exhibit B-7-4
<PAGE>
assets" and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Trustee, either Contract Seller or the Servicer to
any obligation in addition to those expressly undertaken in this Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June __, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-7 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------
Authorized Signatory
Exhibit B-7-5
<PAGE>
EXHIBIT B-8
CLASS B-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN SHALL BE REGISTERED
UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES THE TRUSTEE, THE CONTRACT SELLERS AND
THE SERVICER (AS EACH SUCH TERM IS DEFINED HEREIN) WITH (A) A CERTIFICATE TO THE
EFFECT THAT SUCH TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT PLAN SUBJECT TO
SECTION 406 OR SECTION 407 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, THE TRUSTEE OF ANY SUCH
PLAN OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN NOR A PERSON USING THE ASSETS
OF ANY SUCH PLAN AND (2) IF SUCH TRANSFEREE IS AN INSURANCE COMPANY, IT IS
PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN WITH FUNDS CONTAINED IN AN
"INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(e) OF
THE PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AND THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE OR ANY INTEREST HEREIN IS COVERED UNDER
PTCE 95-60; OR (B) AN OPINION OF COUNSEL (A "BENEFIT PLAN OPINION") SATISFACTORY
TO THE TRUSTEE, THE CONTRACT SELLERS AND THE SERVICER, AND UPON WHICH THE
TRUSTEE, THE CONTRACT SELLERS AND THE SERVICER SHALL BE ENTITLED TO RELY, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR ANY INTEREST HEREIN
BY THE PROSPECTIVE TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA OR THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE CONTRACT
SELLERS OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY
SUCH ENTITIES IN THE AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE CONTRACT SELLERS OR THE SERVICER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
Exhibit B-8-1
<PAGE>
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CLASS B-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AND THE CLASS A-7 CERTIFICATES AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
Certificate No. : B-1-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $_____________
Initial Certificate Balance of all
Class B-1 Certificates : $15,361,000.00
Pass-Through Rate : 7.875%
Month of Last Scheduled
Distribution Date : October 2026
CUSIP : 065910AH4
Exhibit B-8-2
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class B-1 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ____________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class B-1
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1996 (the "Agreement"), among the Contract Sellers, BankAmerica Housing
Services, as servicer (the "Servicer"), and The First National Bank of Chicago,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class B-1 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class B-1 Certificate shall be applied first
to interest and then to principal.
Exhibit-B-8-3
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class B-1
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No Transfer of a Class B-1 Certificate shall be made unless the Trustee,
the Contract Sellers and the Servicer shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Trustee, the Contract Sellers and the
Servicer, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
or a Person acting on behalf of any such plan or using the assets of any such
plan, (ii) if such transferee is an insurance company, a representation that it
is purchasing such Class B-1 Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section v(e) of the
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificate are covered under PTCE 95-60 or such
other representation as is acceptable to the Contract Sellers and the Servicer
or (iii) in the case of any Class B-1 Certificate presented for registration in
the name of an employee benefit plan subject to ERISA, or a plan subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee, the
Contract Sellers and the Servicer to the effect that the purchase or holding of
such Class B-1 Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA and the Code and will not subject the Trustee, the Contract Sellers or
the Servicer to any obligation in addition to those expressly undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Trustee,
either Contract Seller or the Servicer. For purposes of clauses (i) and (ii) in
the preceding sentence, such representation shall be deemed to have been made to
the Trustee, the Contract Sellers and the Servicer by the transferee's
acceptance of such Class B-1 Certificates (or the acceptance by a Certificate
Owner of the beneficial interest in any such Class B-1 Certificates) unless the
Trustee, the Contract Sellers and the Servicer shall have received from the
transferee an alternative representation acceptable in form and substance to the
Contract Sellers at the time of such acceptance, and the Depository shall not
make any such representation. Notwithstanding anything else to the contrary
herein, any purported transfer of a Class B-1 Certificate to or on behalf of an
employee benefit plan subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code without the delivery to the Trustee, the Contract
Sellers and the Servicer of an Opinion of Counsel satisfactory to the Trustee,
the Contract Sellers and the Servicer as described above shall be void and of no
effect; PROVIDED, HOWEVER, that the restriction set forth in this sentence shall
not be applicable if there has been delivered to the Trustee, the Contract
Sellers and the Servicer an Opinion of Counsel satisfactory to the Trustee, the
Contract Sellers and the Servicer to the effect that the purchase or holding of
a Class B-1 Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the
Exhibit B-8-4
<PAGE>
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee, either Contract Seller or the Servicer to any obligation in addition to
those expressly undertaken in this Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June ___, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as
Trustee
By
--------------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-1 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By --------------------------
Authorized Signatory
Exhibit B-8-5
<PAGE>
EXHIBIT B-9
CLASS B-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN SHALL BE REGISTERED
UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES THE TRUSTEE, THE CONTRACT SELLERS AND
THE SERVICER (AS EACH SUCH TERM IS DEFINED HEREIN) WITH (A) A CERTIFICATE TO THE
EFFECT THAT SUCH TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT PLAN SUBJECT TO
SECTION 406 OR SECTION 407 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, THE TRUSTEE OF ANY SUCH
PLAN OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN NOR A PERSON USING THE ASSETS
OF ANY SUCH PLAN AND (2) IF SUCH TRANSFEREE IS AN INSURANCE COMPANY, IT IS
PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN WITH FUNDS CONTAINED IN AN
"INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(e) OF
THE PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AND THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE OR ANY INTEREST HEREIN IS COVERED UNDER
PTCE 95-60; OR (B) AN OPINION OF COUNSEL (A "BENEFIT PLAN OPINION") SATISFACTORY
TO THE TRUSTEE, THE CONTRACT SELLERS AND THE SERVICER, AND UPON WHICH THE
TRUSTEE, THE CONTRACT SELLERS AND THE SERVICER SHALL BE ENTITLED TO RELY, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR ANY INTEREST HEREIN
BY THE PROSPECTIVE TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA OR THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE CONTRACT
SELLERS OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY
SUCH ENTITIES IN THE AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE CONTRACT SELLERS OR THE SERVICER.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISION OF THE AGREEMENT REFERRED TO HEREIN.
Exhibit B-9-1
<PAGE>
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE COMPLIES WITH THE PROVISIONS OF ARTICLE VI OF THE AGREEMENT
REFERRED TO HEREIN.
THIS CLASS B-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, THE CLASS A-7 CERTIFICATES AND THE CLASS B-1 CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. : B-2-__
Date of Pooling and Servicing Agreement
and Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Initial Certificate Balance of
this Certificate ("Denomination") : $_____________
Initial Certificate Balance of all
Class B-2 Certificates : $8,604,417.44
Pass-Through Rate : 8.500%
Month of Last Scheduled
Distribution Date : October 2026
Private Placement No. : 065910AJ0
Exhibit B-9-2
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class B-2 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that _________________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Class B-2 Certificates) in certain monthly distributions
with respect to a Trust Fund consisting of the Contracts deposited by the
Contract Sellers. The Trust Fund was created pursuant to a Pooling and
Servicing Agreement, dated as of June 1, 1996 (the "Agreement"), among the
Contract Sellers, BankAmerica Housing Services, as servicer (the "Servicer"),
and The First National Bank of Chicago, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class B-2 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class B-2 Certificate shall be applied first
to interest and then to principal.
Exhibit B-9-3
<PAGE>
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class B-2
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No transfer of a Class B-2 Certificate shall be made unless such transfer
is made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under the Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer. In the
event that such a transfer is to be made within two years from the date of the
initial issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Regulations
promulgated pursuant to the Act or as otherwise provided in the Agreement) to
the Trustee, the Contract Sellers and the Servicer an Opinion of Counsel that
such transfer may be made pursuant to an exemption from the Act and such state
securities laws, which Opinion of Counsel shall not be obtained at the expense
of the Trustee, the Servicer or either Contract Seller. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee and each Contract Seller against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws
No Transfer of a Class B-2 Certificate shall be made unless the Trustee,
the Contract Sellers and the Servicer shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Trustee, the Contract Sellers and the
Servicer, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
or a Person acting on behalf of any such plan or using the assets of any such
plan, (ii) if such transferee is an insurance company, a representation that it
is purchasing such Class B-2 Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section v(e) of the
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificate are covered under PTCE 95-60 or such
other representation as is acceptable to the Contract Sellers and the Servicer
or (iii) in the case of any Class B-2 Certificate presented for registration in
the name of an employee benefit plan subject to ERISA, or a plan subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee, the
Contract Sellers and the Servicer to the effect that the purchase or holding of
such Class B-2 Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA and the Code and will not subject the Trustee, the Contract Sellers or
the Servicer to any obligation in addition
Exhibit B-9-4
<PAGE>
to those expressly undertaken in this Agreement, which Opinion of Counsel shall
not be an expense of the Trustee, either Contract Seller or the Servicer.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class B-2 Certificate to or on behalf of an employee benefit plan subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code without the
delivery to the Trustee, the Contract Sellers and the Servicer of an Opinion of
Counsel satisfactory to the Trustee, the Contract Sellers and the Servicer as
described above shall be void and of no effect; PROVIDED, HOWEVER, that the
restriction set forth in this sentence shall not be applicable if there has been
delivered to the Trustee, the Contract Sellers and the Servicer an Opinion of
Counsel satisfactory to the Trustee, the Contract Sellers and the Servicer to
the effect that the purchase or holding of a Class B-2 Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and will
not subject the Trustee, either Contract Seller or the Servicer to any
obligation in addition to those expressly undertaken in this Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
Exhibit B-9-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June ___, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-2 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------
Authorized Signatory
Exhibit B-9-6
<PAGE>
EXHIBIT C
Form of Reverse of Certificates
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
This Certificate is one of a duly authorized issue of Certificates
designated as BankAmerica Manufactured Housing Contract Trust,
Senior/Subordinate Pass-Through Certificates, Series 1996-1 issued in ten
Classes (Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class
A-7, Class B-1, Class B-2 and Class R, herein collectively called the
"Certificates"), and representing a beneficial ownership interest, as described
in the Agreement, in (i) the related Contracts, (ii) the distributions thereon
on or after the Cut-off Date (to the extent described herein), (iii) the related
Certificate Account and such assets as are deposited therein from time to time
and any investments thereof, together, in each case, with any and all income,
proceeds and payments with respect thereto, and (iv) the Reserve Account.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account and the
funds, if any, on deposit in the Reserve Account for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Contract Sellers, the Servicer and the Trustee with the consent of the
Holders of a Majority in Interest of each Class of Regular Certificates affected
by such amendment. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of
Exhibit C-1
<PAGE>
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Either Contract Seller and the Trustee and any agent of such Contract
Seller or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither of the Contract
Sellers, the Trustee, nor any such agent shall be affected by any notice to the
contrary.
Within ninety days following the Distribution Date as of which the
Pool Scheduled Principal Balance is less than 10% of the Cut-off Date Pool
Scheduled Principal Balance, the Trustee shall conduct an auction (a
"Termination Auction") by soliciting bids for the purchase of all Contracts
remaining in the Trust Fund. In the event that satisfactory bids are
received as described in the Agreement, the net sale proceeds will be
distributed to Certificateholders, in the same order of priority as
collections received in respect of the Contracts. A satisfactory bid is one
in which the purchase price of the Contracts then outstanding is at least
equal to the Minimum Termination Amount (as hereinafter defined). Such a bid
must be made in accordance with certain auction procedures set forth in the
Agreement, which include a require ment that the Trustee receive good faith
bids for such Contracts from at least two prospective purchasers (at least
one of whom is not a Contract Seller or an affiliate thereof) that are
considered by the Trustee, in its sole discretion, to be (i) competitive
participants in the market for manufactured housing installment sale
contracts or installment loan agreements and (ii) willing and able purchasers
of such Contracts. As of any time after the Pool Scheduled Principal Balance
is less than 10% of the Cut-off Date Pool Scheduled Principal Balance, the
"Minimum Termination Amount" is an amount equal to the respective Certificate
Balances of all Classes of Certificates that remain outstanding as of such
time, together with any shortfall in interest due on such Certificates in
respect of prior Distribution Dates and one month's interest at the
applicable Pass-Through Rates on such Certificate Balances. A sale and
consequent termination of the Trust Fund pursuant to a Termination Auction
must constitute a "qualified liquidation" of the Trust Fund under Section
860F of the Code, including the requirement that the qualified liquidation
takes place over a period not to exceed 90 days. If satisfactory bids are
not received, the Trustee shall decline to sell the Contracts and shall not
be under any obligation to solicit any further bids or otherwise negotiate
any further sale of the Contracts.
Exhibit C-2
<PAGE>
If the Trust Fund is not terminated pursuant to a Termination
Auction, on any Distribution Date on which the Pool Scheduled Principal
Balance is less than or equal to 5% of the Cut-off Date Pool Principal
Balance, the Servicer will have the option to repurchase, upon giving notice
mailed no later than the 10th day of the month next preceding the month of
the exercise of such option, all Outstanding Contracts at a price equal to
the greater of (a) the sum of (x) 100% of the Scheduled Principal Balance of
each Contract (other than any Contract as to which the related Manufactured
Home has been acquired and not yet disposed of and whose fair market value is
included pursuant to Clause (y) below) as of the final Distribution Date, and
(y) the fair market value of such acquired property (as determined by the
Servicer as of the close of business on the third Business Day next preceding
the date upon which notice of any such termination is furnished to
Certificateholders pursuant to Section 10.01 of the Agreement), and (b) the
aggregate fair market value (as determined by the Servicer as of the close of
business on such third Business Day) of all the assets in the Trust Fund,
plus, in the case of both clause (a) and clause (b), an amount sufficient to
(i) reimburse any Class A-1 Unpaid Interest Shortfall, Class A-2 Unpaid
Interest Shortfall, Class A-3 Unpaid Interest Shortfall, Class A-4 Unpaid
Interest Shortfall, Class A-5 Unpaid Interest Shortfall, Class A-6 Unpaid
Interest Shortfall, Class A-7 Unpaid Interest Shortfall, Class B-1 Unpaid
Interest Shortfall, and any Class B-2 Unpaid Interest Shortfall and (ii) pay
one month's interest due on the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class B-1 and Class B-2 Certificates at the
applicable Pass-Through Rates on such Classes' unpaid Certificate Balances;
PROVIDED, that in no event shall the purchase price of such Contracts be less
than the Minimum Termination Amount.
Any repurchase pursuant to a Termination Auction or by the Servicer will be
made at the price specified in the Agreement. In the event that no such early
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon the later of the final payment or other
liquidation of the last Contract remaining in the Trust Fund and the disposition
of all REO Property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of the certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
Exhibit C-3
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_______________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _______________________________________________________, for
the account of _________________________________, account number ______________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________, the assignee
named above, or ___________________________________, as its agent.
Exhibit C-4
<PAGE>
EXHIBIT D
CLASS R CERTIFICATE
THIS CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS R CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, THE CLASS A-7 CERTIFICATES, THE CLASS B-1 CERTIFICATES AND THE
CLASS B-2 CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISION OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE COMPLIES WITH THE PROVISIONS OF ARTICLE VI OF THE AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN SHALL BE REGISTERED
UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES THE TRUSTEE, THE CONTRACT SELLERS AND
THE SERVICER (AS EACH SUCH TERM IS DEFINED HEREIN) WITH (A) A CERTIFICATE TO THE
EFFECT THAT SUCH TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT PLAN SUBJECT TO
SECTION 406 OR SECTION 407 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, THE TRUSTEE OF ANY SUCH
PLAN OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN NOR A PERSON USING THE ASSETS
OF ANY SUCH PLAN AND (2) IF SUCH TRANSFEREE IS AN INSURANCE COMPANY, IT IS
PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN WITH FUNDS CONTAINED IN AN
"INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(e) OF
THE PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AND THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE OR ANY INTEREST HEREIN IS COVERED UNDER
PTCE 95-60; OR (B) AN OPINION OF COUNSEL (A "BENEFIT
Exhibit D-1
<PAGE>
PLAN OPINION") SATISFACTORY TO THE TRUSTEE, THE CONTRACT SELLERS AND THE
SERVICER, AND UPON WHICH THE TRUSTEE, THE CONTRACT SELLERS AND THE SERVICER
SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE OR ANY INTEREST HEREIN BY THE PROSPECTIVE TRANSFEREE WILL NOT RESULT
IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE PLAN ASSETS AND SUBJECT TO
THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE CONTRACT SELLERS OR THE SERVICER TO ANY OBLIGATION IN ADDITION
TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE CONTRACT SELLERS OR THE SERVICER.
THE HOLDERS OF THE CLASS R CERTIFICATES, BY PURCHASING SUCH CLASS R
CERTIFICATES, SHALL BE DEEMED TO CONSENT (I) TO THE APPOINTMENT OF THE SERVICER
AS THE TAX MATTERS PERSON FOR THE TRUST FUND OR, IF THE SERVICER DETERMINES, IN
ITS SOLE DISCRETION, THAT IT CANNOT ACT IN SUCH CAPACITY, TO THE APPOINTMENT OF
THE HOLDER HOLDING THE LARGEST PERCENTAGE INTEREST IN THE OUTSTANDING CLASS R
CERTIFICATES AS THE TAX MATTERS PERSON FOR THE TRUST FUND. IF THE HOLDER OF THE
LARGEST PERCENTAGE INTEREST IN THE OUTSTANDING CLASS R CERTIFICATES IS APPOINTED
AS THE TAX MATTERS PERSON, SUCH HOLDER SHALL BE DEEMED TO CONSENT, WITH RESPECT
TO ITS CAPACITY AS TAX MATTERS PERSON, TO THE APPOINTMENT OF THE SERVICER AS ITS
ATTORNEY-IN-FACT AND AGENT. THE HOLDERS OF THE CLASS R CERTIFICATES, BY
PURCHASING SUCH CLASS R CERTIFICATES, SHALL BE FURTHER DEEMED TO AGREE TO
EXECUTE ANY DOCUMENTS REQUIRED TO GIVE EFFECT TO THE FOREGOING PROVISIONS, AS
SET FORTH MORE FULLY IN THE AGREEMENT.
Certificate No. : R-__
Date of Pooling and
Servicing Agreement and
Cut-off Date : June 1, 1996
First Distribution Date : July 10, 1996
Percentage Interest
Evidenced by this
Class R Certificate : ___%
Month of Last Scheduled Distribution Date : October 2026
Exhibit D-2
<PAGE>
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1996-1
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to a Trust Fund consisting primarily of a
pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, each
as Contract Seller (each a "Contract Seller")
which manufactured housing contracts were originated or acquired by BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB
("BankAmerica Housing Services") or Bank of America National Trust and Savings
Association ("Bank of America"), respectively, and are initially serviced by
BankAmerica Housing Services.
Neither this Certificate nor the Contracts are insured or guaranteed by
either Contract Seller, the Servicer or the Trustee referred to below or any of
their respective Affiliates or by any governmental agency or instrumentality.
This certifies that _______________________________________________________
is the registered owner of the Percentage Interest evidenced by this Certificate
in certain monthly distributions with respect to a Trust Fund consisting of the
Contracts deposited by the Contract Sellers. The Trust Fund was created
pursuant to a Pooling and Servicing Agreement, dated as of June 1, 1996. (the
"Agreement"), among the Contract Sellers, BankAmerica Housing Services, as
servicer (the "Servicer"), and The First National Bank of Chicago, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Trustee will cause to be distributed to the Class R Certificateholder
the amounts to which such Holder is entitled pursuant to the terms of the
Agreement. Such distributions will be made by check mailed to the address of
the Person entitled thereto, as such address shall appear on the Certificate
Register or by wire or other transfer of immediately available funds if such
Person has given the Trustee written instructions at least ten days prior to the
related Distribution Date. Notwithstanding the above, the final distribution on
this Class R Certificate will be made only upon presentation and surrender of
this Class R Certificate at the Corporate Trust Office or the office or agency
maintained by the Trustee for such purpose.
No transfer of a Class R Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under the Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to
Exhibit D-3
<PAGE>
assure compliance with the Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee in writing the facts surrounding the transfer. In
the event that such a transfer is to be made within two years from the date of
the initial issuance of Certificates pursuant hereto, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Regulations promulgated pursuant to the Act or as otherwise provided in the
Agreement) to the Trustee an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Servicer or either Contract Seller. The Holder hereof desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and each
Contract Seller against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No Transfer of a Class R Certificate shall be made unless the Trustee,
the Contract Sellers and the Servicer shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in
form and substance satisfactory to the Trustee, the Contract Sellers and the
Servicer, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the
Code, or a Person acting on behalf of any such plan or using the assets of
any such plan, (ii) if such transferee is an insurance company, a
representation that it is purchasing such Class R Certificate with funds
contained in an "insurance company general account" (as such term is defined
in Section v(e) of the Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate are covered
under PTCE 95-60 or such other representation as is acceptable to the
Contract Sellers and the Servicer or (iii) in the case of any Class R
Certificate presented for registration in the name of an employee benefit
plan subject to ERISA, or a plan subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee, the Contract Sellers and the Servicer to
the effect that the purchase or holding of such Class R Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee, either Contract Seller or the Servicer to any
obligation in addition to those expressly undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of the Trustee, either Contract
Seller or the Servicer. For purposes of clauses (i) and (ii) in the
preceding sentence, such representation shall be deemed to have been made to
the Trustee, the Contract Sellers and the Servicer by the transferee's
acceptance of such Class R Certificates (or the acceptance by a Certificate
Owner of the beneficial interest in any such Class of Class R Certificates)
unless the Trustee, the Contract Sellers and the Servicer shall have received
from the transferee an alternative representation acceptable in form and
substance to the Contract Sellers at the time of such acceptance, and the
Depository shall not make any such representation. Notwithstanding anything
else to the contrary herein, any purported transfer of a Class R Certificate
to or on behalf of an employee benefit plan subject to Section 406 of ERISA
or a plan subject to Section 4975 of the Code without the delivery to the
Trustee, the Contract Sellers and the Servicer of an Opinion of Counsel
satisfactory to the Trustee, the Contract Sellers and the Servicer as
described above shall be void and of no effect; PROVIDED, HOWEVER, that the
restriction set forth in this sentence shall not be applicable if there has
been delivered to the Trustee, the
Exhibit D-4
<PAGE>
Contract Sellers and the Servicer an Opinion of Counsel satisfactory to the
Trustee, the Contract Sellers and the Servicer to the effect that the purchase
or holding of a Class R Certificate will not result in the assets of the Trust
Fund being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, either
Contract Seller or the Servicer to any obligation in addition to those expressly
undertaken in this Agreement.
Each Holder of this Class R Certificate will be deemed to have agreed to be
bound by the restrictions of Section 6.02 of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class R Certificate must be a Permitted Transferee,
(ii) no Ownership Interest in this Class R Certificate may be transferred
without delivery to the Trustee of (a) a transfer affidavit of the proposed
transferee and (b) a transfer certificate of the transferor, each of such
documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class R Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Trustee as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class R Certificate must agree not to
transfer an Ownership Interest in this Class R Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: June ___, 1996
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as
Trustee
By
------------------------------------------
Authorized Signatory
Exhibit D-5
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
--------------------------
Authorized Signatory
Exhibit D-6
<PAGE>
<PAGE>
EXHIBIT E
FORM OF CERTIFICATE REGARDING
SUBSTITUTION OF ELIGIBLE SUBSTITUTE CONTRACT
The undersigned certify that they are [title] and [title], respectively of
[BankAmerica Housing Services, a division of Bank of America, FSB] [Bank of
America National Trust and Savings Association] (the "Contract Seller"), and
that as such they are duly authorized to execute and deliver this certificate on
behalf of the Contract Seller pursuant to Section 3.05(b) of the Pooling and
Servicing Agreement (the "Agreement") dated as of June 1, 1996 among Bank of
America National Trust and Savings Association, as Contract Seller, BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, as
Contract Seller, and The First National Bank of Chicago as Trustee (all
capitalized terms used herein without definition having the respective meanings
specified in the Agreement), and further certify that:
1. The Contracts on the attached schedule are to be substituted on the
date hereof pursuant to Section 3.05(b) of the Agreement and each such Contract
is an Eligible Substitute Contract.
2. The Contract File for each such Contract being substituted for a
Replaced Contract is in the custody of the Servicer and each such Contract has
been stamped in accordance with Section 3.02(x) of the Agreement.
3. The UCC-1 financing statement in respect of the Contracts to be
substituted, in the form required by Section 3.05(b)(ii) of the Agreement, has
been filed with the appropriate office in California.
4. There has been deposited in the Certificate Account each amount listed
on the schedule attached hereto as the amount by which the remaining principal
balance of each Replaced Contract exceeds the remaining principal balance as of
the beginning of the month of substitution of each Contract being substituted
therefor.
Exhibit E-1
<PAGE>
IN WITNESS WHEREOF, I have affixed hereunto my signature this __ day of
________, 19__.
[CONTRACT SELLER]
By
------------------------------------
[Name]
--------------------------------
[Title]
--------------------------------
By
------------------------------------
[Name]
--------------------------------
[Title]
--------------------------------
Exhibit E-2
<PAGE>
EXHIBIT F
[FORM OF CERTIFICATE OF SERVICING OFFICER]
The undersigned certifies that he is a [title] of [Servicer], a
[_____________] corporation (the "Servicer"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of the Servicer
pursuant to Section 5.05 of the Pooling and Servicing Agreement (the
"Agreement") dated as of June 1, 1996 among Bank of America National Trust and
Savings Association, as Contract Seller, BankAmerica Housing Services, a
division of Bank of America, FSB, as Servicer and Contract Seller and The First
National Bank of Chicago, as trustee (all capitalized terms used herein without
definition having the respective meanings specified in the Agreement), and
further certifies that:
1. To the best of such officer's knowledge, the Monthly Report for the
period from ____________ to ___________ attached to this certificate is complete
and accurate in accordance with the requirements of Sections 5.04 and 5.05 of
the Agreement; and
2. As of the date hereof, such officer is not aware of the occurrence of
an Event of Default or of an event that, with notice or lapse of time or both,
would become an Event of Default.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ___ day of
_______________, ____.
[SERVICER]
By
------------------------------------
[Name]
--------------------------------
[Title]
--------------------------------
Exhibit F
<PAGE>
EXHIBIT G
TRANSFER AFFIDAVIT
STATE OF )
) ss.
COUNTY OF. )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the "Certificate")
issued pursuant to the Pooling and Servicing Agreement, dated as of June 1, 1996
(the "Agreement"), by and among Bank of America National Trust and Savings
Association, as Contract Seller, BankAmerica Housing Services, an unincorporated
division of Bank of America, FSB, as Servicer and Contract Seller and The First
National Bank of Chicago, as Trustee. Capitalized terms used, but not defined
herein or in Exhibit 1 hereto, shall have the meanings ascribed to such terms in
the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit.
The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with respect to
which the record holder furnishes to the pass-through entity an affidavit that
such record holder is a Permitted Transferee and the pass-through entity does
not have actual knowledge that such affidavit is false. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership,
Exhibit G-1
<PAGE>
trust or estate, and certain cooperatives and, except as may be provided in
Treasury Regulations, persons holding interests in pass-through entities as a
nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 6.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02(c) of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as EXHIBIT H to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Class R
Certificates.
8. The Transferee's taxpayer identification number is _____.
9. The Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
* * *
Exhibit G-2
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ____ day of _____________, 19__.
[NAME OF TRANSFEREE]
By:
------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
-------------------------
[Assistant] Secretary
Personally appeared before me the above-named _____________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________ of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of _______, 19__.
---------------------------------------
NOTARY PUBLIC
My Commission expires the ___ day of
_______________, 19__.
Exhibit G-3
<PAGE>
EXHIBIT 1 TO
EXHIBIT G
CERTAIN DEFINITIONS
"Ownership Interest": Any legal or beneficial, direct or indirect,
ownership or other interest.
"Permitted Transferee": Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in Section 860E(c)(1) of the Code) with respect to any
Class R Certificate, (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust whose income from sources outside the
United States is includable in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States unless such Person has furnished the transferor and the
Trustee with a duly completed Internal Revenue Service Form 4224. The terms
"United States," "State" and "International Organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Class R Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Class R Certificate.
Exhibit G-4
<PAGE>
EXHIBIT 2 TO
EXHIBIT G
SECTION 6.02(C) OF THE AGREEMENT
(c) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Class R Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "TRANSFER AFFIDAVIT") of the initial owner or the proposed
transferee in the form attached hereto as EXHIBIT G.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Class R Certificate in violation of the provisions of this Section
6.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
6.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by Section 6.02(b) and this
Section 6.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit, Transferor Certificate and
either the Rule 144A Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a Class R
Exhibit G-5
<PAGE>
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Class R Certificate at and
after either such time. Any such payments so recovered by the Trustee
shall be paid and delivered by the Trustee to the last preceding Permitted
Transferee of such Certificate.
(v) The Servicer shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information necessary
to compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Class R Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set forth in this
Section 6.02(c) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trustee, the Trust Fund, or the Servicer to the
effect that the elimination of such restrictions will not cause the Trust Fund
to fail to qualify as a REMIC at any time that the Certificates are outstanding
or result in the imposition of any tax on the Trust Fund, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Class R Certificate hereby consents to any amendment of this Agreement that,
based on an Opinion of Counsel furnished to the Trustee, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in, a
Class R Certificate is not transferred, directly or indirectly, to a Person that
is not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Class R Certificate that is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
Exhibit G-6
<PAGE>
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
FOR CLASS B-2 AND CLASS R CERTIFICATES
Bank of America National Trust Date:
and Savings Association
555 California Street
San Francisco, California 94104
Bank of America, FSB
10089 Willow Creek Road
San Diego, California 92131
The First National Bank of Chicago,
as Trustee
One North State Street
Chicago, Illinois 60603
Re: BankAmerica Manufactured Housing Contract Trust
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES, SERIES 1996-1
Ladies and Gentlemen:
In connection with our disposition of the Class __ Certificate[s], we
certify that (a) we understand that such Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
of by us in a transaction that is exempt from the registration requirements of
the Act, (b) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, in a manner that would be
deemed, or taken any other action that would result in, a violation of Section 5
of the Act and (c) to the extent we are disposing of a Class R Certificate, we
have no knowledge the Transferee is not a Permitted Transferee. All capitalized
terms used herein but not defined herein shall have the meanings assigned to
them in the Pooling and Servicing Agreement dated as of June 1, 1996 among Bank
of America National Trust and Savings Association, as Contract Seller,
BankAmerica Housing Services, an unincorporated division of Bank of America,
FSB, as Servicer and Contract Seller, and The First National Bank of Chicago, as
Trustee.
Very truly yours,
---------------------------------------
Name of Transferor
By:
------------------------------------
Name:
Title:
Exhibit H
<PAGE>
EXHIBIT I
FORM OF DEPOSITORY AGREEMENT
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Trustee]
Bank of America National Trust and Savings Association
and Bank of America, FSB
[Name of Issuer]
The First National Bank of Chicago
[Name of Trustee]
June 13, 1996
----------------
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: Manufactured Housing Contract Trust Senior/Subordinate Pass-Through
Certificates, Series 1996-1.
[Issue Description]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Trustee will act as
trustee with respect to the Securities pursuant to a pooling and servicing
agreement dated as of June 1, 1996 (the "Document"), among Bank of America
National Trust and Savings Association, as a Contract Seller, BankAmerica
Housing Services, an unincorporated division of Bank of America, FSB, as a
Contract Seller and as Servicer, and The First National Bank of Chicago, as
Trustee ("Trustee"). Bank of America National Trust and Savings Association
and Bank of America, FSB are herein referred to collectively as the "Issuer."
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Document. BA Securities, Inc., Morgan Stanley & Co.
Incorporated and Greenwich Capital Markets, Inc. (collectively, the
"Underwriters") are distributing the Securities through The Depository Trust
Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Trustee make the following representations to DTC:
Exhibit I-2
<PAGE>
1. Prior to closing on the Securities on June 13, 1996, there
shall be deposited with DTC one Security certificate registered in the name of
DTCs nominee, Cede & Co., for each stated maturity of the Securities in the face
amounts set forth on Schedule A hereto, the total of which represents 100% of
the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $200 million, one certificate will
be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remained principal
amount. Each Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Trustee
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
2. In the event of any solicitation of consents from or voting by holders
of the Securities, Trustee shall establish a record date for such purposes
(with no provision for revocation of consents or votes by subsequent holders)
and shall, to the extent possible, send notice of such record date to DTC not
less than 15 calendar days in advance of such record date. Notices to DTC
pursuant to this Paragraph by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-6896 or (212) 709-6897, and receipt of such notices
shall be confirmed by telephoning (212) 709-6870. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to DTC`s
Reorganization Department as indicated in Paragraph 4.
3. In the event of a full or partial redemption, Trustee shall send a
notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be mailed to Security holders or
published (the "Publication Date"). Such notice shall be sent to DTC by a
secure means (E.G., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTCs
possession no later than the close of business on the business day before or, if
possible, two business days before the Publication Date. Trustee shall
forward such notice either in a separate secure transmission for each
CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be not less than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be sent to DTC's Call Notification Department at (516) 227-4039
or (516) 227-4190. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has
Exhibit I-3
<PAGE>
been received, such party shall telephone (516) 227-4070. Notices to DTC
pursuant to this Paragraph by mail or by any other means shall be sent to:
Manager: Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
4. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Trustee
to Security holders specifying the terms of the tender and the Publication Date
of such notice shall be sent to DTC by a secure means in the manner set forth in
the preceding Paragraph. Notices to DTC pursuant to this Paragraph and notices
of other corporate actions by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-1093 or (212) 709-1094, and receipt of such notices
shall be confirmed by telephoning (212) 709-6884. Notices to DTC pursuant to
the above by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004-2695
5. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
6. Trustee shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably 5, but not less than 2,
business days prior to such payment date. Such notices, which shall also
contain the current pool factor, any special adjustments to principal/interest
rates (e.g., adjustments due to deferred interest or shortfall), and Trustee
contact's name and telephone number, shall be sent by telecopy to DTCs Dividend
Department at (212) 709-1723, or if by mail or by any other means to:
Manager: Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
7. [NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING, AND CROSS OUT THE
OTHER:] [The interest accrual period is payment date to payment date.]
Exhibit I-4
<PAGE>
8. Trustee must provide DTC, no later than noon (Eastern Time) on the
payment date, CUSIP numbers for each issue for which payment is being sent, as
well as the dollar amount of the payment for each issue. Notification of
payment details should be sent using automated communications.
9. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns in same-day funds, no later than 2:30 p.m.
(Eastern Time) on each payment date (in accordance with existing arrangements
between Trustee and DTC). Absent any other arrangements between Trustee and
DTC, such funds shall be wired as follows:
Chemical Bank
ABA 021000128
For credit to A/C The Depository Trust Company
Dividend Deposit Account 066-026776
Trustee shall provide interest payment information to a standard
announcement service subscribed to by DTC. In the unlikely event that no such
service exists, Trustee shall provide interest payment information directly to
DTC in advance of the interest payment date as soon as the information is
available. This information should be conveyed directly to DTC electronically.
If electronic transmission is not available, absent any other arrangements
between Trustee and DTC, such information should be sent by telecopy to DTC's
Dividend Department at (212) 709-1723 or (212) 709-1686, and receipt of such
notices shall be confirmed by telephoning (212) 709-1270. Notices to DTC
pursuant to the above by mail or by any other means shall be sent to:
Manager: Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
10. DTC shall receive maturity and redemption payments allocated with
respect to each CUSIP number on the payable date in same-day funds by 2:30 p.m.
(Eastern Time). Absent any other arrangements between Trustee and DTC, such
payments shall be wired as follows:
Chemical Bank
ABA 021000128
For credit to A/C The Depository Trust Company
Redemption Account 066-027306
in accordance with existing SDFS payment procedures in the manner set forth in
DTC's SDFS PAYING AGENT OPERATING PROCEDURES, a copy of which has previously
been furnished to Trustee.
Exhibit I-5
<PAGE>
11. DTC shall receive all reorganization payments and CUSIP-level detail
resulting from corporate actions (such as tender offers, remarketings, or
mergers) on the first payable date in same-day funds by 2:30 p.m. (Eastern
Time). Absent any other arrangements between Trustee and DTC, such payments
shall be wired as follows:
Chemical Bank
ABA 021000128
For credit to A/C The Depository Trust Company
Reorganization Account 066-027608
12. DTC may direct Trustee to use any other number or address as the
number or address to which notices or payments of interest or principal may
be sent.
13. In the event of a redemption, acceleration, or any other similar
transaction (E.G., tender made and accepted in response to Trustee's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding (other than as a result of monthly amortization), DTC, in its
discretion: (a) may request Trustee to issue and authenticate a new Security
certificate; or (b) may make an appropriate notation on the Security
certificate indicating the date and amount of such reduction in principal
except in the case of final maturity, in which case the certificate will be
presented to Trustee prior to payment, if
required.
14. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Trustee
shall notify DTC of the availability of certificates. In such event, Trustee
shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
15. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to
Trustee (at which time DTC will confirm with Trustee the aggregate principal
amount of Securities outstanding). Under such circumstances, at DTC's
request Trustee shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
16. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
Exhibit I-6
<PAGE>
17. Nothing herein shall be deemed to require Trustee to advance funds on
behalf of Issuer.
NOTES: Very truly yours,
A. If there is a Trustee (as defined
in this Letter of Representations),
Trustee as well as Issuer must sign Bank of America National Trust and
this Letter. If there is no Trustee, Savings Association and Bank of
in signing this Letter Issuer itself America, FSB
undertakes to perform all of the (Issuer)
obligations set forth herein.
By: /s/ John W. Wheeler
----------------------------
(Authorized Officer's Signature)
B. Schedule B contains statements
that DTC believes accurately describe
DTC, the method of effecting book- The First National Bank of Chicago
entry transfers of securities (Trustee)
distributed through DTC, and certain
related matters.
Received and Accepted: By: /s/ Francis Ballentio
THE DEPOSITORY TRUST COMPANY ----------------------------------
(Authorized Officer's Signature)
By: /s/ Richard B. Nesson
------------------------------
cc: Underwriter
Underwriter's Counsel
Exhibit I-7
<PAGE>
SCHEDULE A
BankAmerica Manufactured Housing
Contract Trust Senior/Subordinate
Pass-Through Certificates, Series 1996-1
[Describe Issue]
Cusip Number Principal Amount Maturity Date Interest Rate
065910AA9 $47,129,000.00 10th business day in 6.125%
October 2026
065910AB7 $51,893,000.00 10th business day in 6.650%
October 2026
065910AC5 $20,316,000.00 10th business day in 6.950%
October 2026
065910AD3 $26,068,000.00 10th business day in 7.300%
October 2026
065910AE1 $28,483,000.00 10th business day in 7.550%
October 2026
065910AF8 $27,040,000.00 10th business day in 8.000%
October 2026
065910AG6 $20,891,000.00 10th business day in 7.800%
October 2026
065910AH4 $15,361,000.00 10th business day in 7.875%
October 2026
<PAGE>
SCHEDULE B
SAMPLE OFFICIAL STATEMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(PREPARED BY DTC-BRACKETED MATERIAL MAY BE APPLICABLE ONLY TO CERTAIN ISSUES)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Security certificate will be
issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $200 million, one certificate
will be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is owned
by a number of its Direct Participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
Exhibit I
<PAGE>
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the
name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Securities; DTC`s records
reflect only the identity of the Direct Participants to whose accounts such
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
[6. Redemption notices shall be sent to Cede & Co. If less than all of
the Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in such
issue to be redeemed.]
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy.
8. Principal and interest payments on the Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, Trustee, or Issuer, subject
to any statutory or regulatory requirements as may be in effect from time to
time. Payment of principal and interest to DTC is the responsibility of Issuer
or Trustee, disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to Trustee [or
Tender/Remarketing Agent], and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in the
Securities, on DTC's records, to Trustee [or Tender/Remarketing Agent]. The
requirement for physical delivery of Securities in connection with an optional
tender or a mandatory purchase will be deemed satisfied when the ownership
rights in the Securities are transferred by Direct Participants on DTC's records
and followed by a book-entry credit of tendered Securities to Trustee [or
Tender/Remarketing Agents] DTC account.]
Exhibit I
<PAGE>
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
Exhibit I
<PAGE>
EXHIBIT J
FORM OF INVESTMENT LETTER [NON-RULE 144A]
FOR CLASS R CERTIFICATES
Date:
Bank of America National Trust
and Savings Association
555 California Street
San Francisco, California 94104
Bank of America, FSB
10089 Willow Creek Road
San Diego, California 92131
The First National Bank of Chicago,
as Trustee
One North State Street
Chicago, Illinois 60603
Re: BankAmerica Manufactured Housing Contract Trust
Senior/Subordinate Pass-Through Certificates,
Series 1996-1
Ladies and Gentlemen:
In connection with our acquisition of the Class R Certificates in the
Denomination of (the "Certificates"), we certify that (a) we
understand that such Certificates are not being registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an "accredited investor,"
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of, and have received answers to such questions from, the Contract
Sellers concerning the purchase of the Certificates and all matters relating
thereto and have received any additional information deemed necessary to our
decision to purchase the Certificates, (d) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, nor a plan subject to Section 4975 of the Internal Revenue Code of 1986
(each of the foregoing, a "Plan"), nor are we acting on behalf of any Plan, (e)
we are acquiring the Certificates for investment for our own account and not
with a view to any distribution of such Certificates (but without prejudice to
our right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other
Exhibit J-1
<PAGE>
action that would result in a violation of Section 5 of the Act, and (g) we will
not sell, transfer or otherwise dispose of any Certificates unless (1) such
sale, transfer or other disposition is made pursuant to an effective
registration statement under the Act or is exempt from such registration
requirements, and if requested, we will at our expense provide an opinion of
counsel satisfactory to the addressees of this Certificate that such sale,
transfer or other disposition may be made pursuant to an exemption from the Act,
(2) the purchaser or transferee of such Certificate has executed and delivered
to you a certificate to substantially the same effect as this certificate, and
(3) the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Pooling and Servicing Agreement dated as of June 1,
1996 (the "Agreement"), among Bank of America National Trust and Savings
Association, as Contract Seller, BankAmerica Housing Services, an unincorporated
division of Bank of America, FSB, as Servicer and Contract Seller, and The First
National Bank of Chicago, as Trustee. All capitalized terms used herein but not
defined herein shall have the meanings assigned to them in the Agreement.
Very truly yours,
--------------------------------------
--------------------------------------
Name of Transferee
By:
--------------------------------------
Name:
Title:
Exhibit J-2
<PAGE>
EXHIBIT K
FORM OF RULE 144A LETTER
FOR CLASS R CERTIFICATES
Date:
Bank of America National Trust
and Savings Association
555 California Street
San Francisco, California 94104
Bank of America, FSB
10089 Willow Creek Road
San Diego, California 92131
The First National Bank of Chicago,
as Trustee
One North State Street
Chicago, Illinois 60603
Re: BankAmerica Manufactured Housing Contract Trust
Senior/Subordinate Pass-Through Certificates,
Series 1996-1
Ladies and Gentlemen:
In connection with our proposed purchase of the Class R Certificates (the
"Certificates") we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction that
is exempt from the registration requirements of the Act and any such laws, (b)
we have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of, and have
received answers to such questions from, the Contract Sellers concerning the
purchase of the Certificates and all matters relating thereto and have received
any additional information deemed necessary to our decision to purchase the
Certificates, (d) we are not an employee benefit plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended, nor a plan subject
to Section 4975 of the Internal Revenue Code of 1986 (each of the foregoing, a
"Plan"), nor are we acting on behalf of any Plan, (e) we have not, nor has
anyone acting on our behalf, offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificates, any interest in the Certificates or
any other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any
Exhibit K-1
<PAGE>
interest in the Certificates or any other similar security with, any person in
any manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, and (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only subject to the applicable transfer provisions of the Agreement.
All capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement dated as of June 1, 1996
(the "Agreement"), among Bank of America National Trust and Savings Association,
as Contract Seller, BankAmerica Housing Services, an unincorporated division of
Bank of America, FSB, as Servicer and Contract Seller, and The First National
Bank of Chicago, as Trustee.
--------------------------------------
Name of Buyer
By:
-----------------------------------
Name:
Title:
Exhibit K-2
<PAGE>
ANNEX 1 TO EXHIBIT K
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $__________(1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and
(ii) the Buyer satisfies the criteria in the category marked below.
-- CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended.
-- BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is attached
hereto.
-- SAVINGS AND LOAN. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is attached
hereto.
- --------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
Exhibit K-3
<PAGE>
-- BROKER-DEALER. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
-- INSURANCE COMPANY. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of Columbia.
-- STATE OR LOCAL PLAN. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
-- ERISA PLAN. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
-- INVESTMENT ADVISOR. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
-- SMALL BUSINESS INVESTMENT COMPANY. The Buyer is a small business
investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958.
-- BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors
Act of 1940.
-- TRUST FUND. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively State or Local
Plans or ERISA Plans as defined above, and no participant of the Buyer
is an individual retirement account or an H.R. 10 (Keogh) plan.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by
Exhibit K-4
<PAGE>
subsidiaries of the Buyer, but only if such subsidiaries are consolidated with
the Buyer in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under the Buyer's direction. However, such securities were not included
if the Buyer is a majority-owned, consolidated subsidiary of another enterprise
and the Buyer is not itself a reporting company under the Securities Exchange
Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
-----------------------------
Name of Buyer
By:
-------------------------
Name:
Title:
Date:
-----------------------
Exhibit K-5
<PAGE>
ANNEX 2 TO EXHIBIT K
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
-- The Buyer owned $____________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
-- The Buyer is part of a Family of Investment Companies which owned in
the aggregate $__________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers (the "Adviser") that are affiliated
(by virtue of being majority-owned subsidiaries of the same parent or because
one investment adviser is a majority-owned subsidiary of the other).
Exhibit K-6
<PAGE>
4. The term "SECURITIES" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) bank deposit notes and certificates of deposit,
(iii) loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
------------------------------
Name of Buyer or Adviser
By:
---------------------------
Name:
Title:
IF AN ADVISER:
------------------------------
Name of Buyer
Date:
-------------------------
Exhibit K-7
<PAGE>
EXHIBIT L
TERMINATION AUCTION PROCEDURES
The following sets forth the auction procedures to be followed in
connection with a sale effected pursuant to Section 10.01(b) of the Pooling and
Servicing Agreement (the "Agreement"), dated as of June 1, 1996, among Bank of
America National Trust and Savings Association, as a Contract Seller,
BankAmerica Housing Services, an unincorporated division of Bank of America,
FSB, as a Contract Seller and as Servicer, and The First National Bank of
Chicago, as Trustee. Capitalized terms used herein that are not otherwise
defined shall have the meanings described thereto in the Agreement.
I. PRE-AUCTION PROCESS
(a) Upon receiving notice of the Auction Date, the Advisor will initiate
its general Termination Auction procedures consisting of the
following: (i) with the assistance of the Servicer, prepare a general
solicitation package along with a confidentiality agreement;
(ii) develop a list of qualified bidders, in a commercially reasonable
manner; (iii) initiate contact with all qualified bidders; (vi) send a
confidentiality agreement to all qualified bidders; (v) upon receipt
of a signed confidentiality agreement, send solicitation packages to
all interested bidders on behalf of the Trustee; and (vi) notify the
Servicer of all potential bidders and anticipated timetable.
(b) The general solicitation package will include: (i) the prospectus
supplement and prospectus from the initial public offering of any of
the Certificates; (ii) a copy of all monthly servicing reports or a
copy of all annual servicing reports and the prior year's monthly
servicing reports; (iii) a form of a Sale and Servicing Agreement
prepared by the Trustee and the Servicer (or prepared by the Advisor
and approved by the Trustee and the Servicer); (iv) a description of
the minimum purchase price required to cause the Trustee to sell the
Contracts as set forth in Section 10.01(a) of the Agreement; (v) a
formal bidsheet; (vi) a detailed timetable; and (vii) a preliminary
data tape of the Pool Scheduled Principal Balance as of a recent
Distribution Date reflecting the same data attributes used to create
the Cut-off Date tables for the prospectus supplement dated June 7,
1996 relating to the public offering of certain of the Certificates.
None of the Trustee, the Servicer or a Contract Seller shall be
required to produce an updated prospectus or prospectus supplement,
and the auction procedures shall be carried out in a manner that does
not constitute a public offering of securities.
(c) The Trustee, with the assistance of the Servicer and the Advisor, will
maintain an auction package beginning at the time of closing of the
transaction, which will contain the documents listed under
clauses (i)-(ii) of the preceding paragraph. If the Advisor is unable
to perform its role as advisor to the Trustee, the Servicer
Exhibit L-1
<PAGE>
acting in its capacity under the Agreement will select a successor
Advisor and inform the Trustee of its actions.
(d) The Advisor will send solicitation packages to all bidders at least 15
Business Days before the Auction Date. Bidders will be required to
submit any due diligence questions in writing to the Advisor for
determination of their relevancy, no later than 10 Business Days
before the Auction Date. The Servicer and the Advisor will be
required to satisfy all relevant questions at least five Business Days
prior to the Auction Date and distribute the questions and answers to
all bidders.
II. AUCTION PROCESS
(a) The Advisor, any underwriter, or any Certificate Owner will be allowed
to bid in the Auction, but will not be required to do so.
(b) The Servicer will also be allowed to bid in the Termination Auction if
it deems appropriate, but will not be required to do so.
(c) On the Auction Date, all bids will be due by facsimile to the offices
of the Trustee by 1:00 p.m. New York City time, with the winning bidder
to be notified by 2:00 p.m. New York City time. All acceptable bids
(as described in Section 10.01(b) of the Agreement) will be due on a
conforming basis on the bid sheet contained in the solicitation
package.
(d) If the Trustee receives fewer than two market value bids from
participants in the market for manufactured housing installment sales
contracts and installment loan contracts willing and able to purchase
the Contracts, the Trustee shall decline to consummate the sale.
(e) Upon notification to the winning bidder, a good faith deposit equal to
one percent (1%) of the Pool Scheduled Principal Balance will be
required to be wired to the Trustee upon acceptance of the bid. This
deposit, along with any interest income attributable to it, will be
credited to the purchase price but will not be refundable. The
trustee will establish a separate account for the acceptance of the
good faith deposit, until such time as the account is fully funded and
all monies are transferred into the Collection Account, such time not
to be later than one Business Day before the related Distribution Date
(as described above).
(f) The winning bidder will receive on the Auction Date a copy of the
draft Sale and Servicing Agreement and Servicer's Representations and
Warranties (which shall be substantially identical to the
representations and warranties set forth in Section 3.01 of the
Agreement).
(g) The Advisor will provide to the Trustee a letter concluding whether or
not the winning bid is a fair market value bid. The Advisor will
also provide such letter if
Exhibit L-2
<PAGE>
it is the winning bidder. In the case where the Advisor or the
Servicer is the winning bidder it will provide for market comparables
and valuations in its letter.
(h) The Auction will stipulate the Servicer be retained to service the
Contracts sold pursuant to the terms of the Sale and Servicing
Agreement.
(i) The Auction will stipulate that such sale and consequent termination
of the Trust Fund must constitute a "qualified liquidation" of the
Trust Fund under Section 860F of the Code, including the requirement
that such liquidation take place over a period not to exceed 90 days.
The Trustee may, in its discretion, require that the purchaser of the
Contracts provide the Trustee with an Opinion of Counsel to that
effect.
Exhibit L-3
<PAGE>
[LETTERHEAD]
June 13, 1996
Bank of America National Trust
and Savings Association
555 South Flower Street
Los Angeles, California 90071
Bank of America, FSB
10089 Willow Creek Road
San Diego, California 92131
Re: BankAmerica Manufactured Housing Contract Trust
Senior/Subordinate Pass-Through Certificates, Series 1996-1
Ladies and Gentlemen:
We are special tax counsel to Bank of America National Trust and Savings
Association ("Bank of America") and Bank of America, FSB ("BAFSB" and,
collectively with Bank of America, the "Registrants") in connection with the
sale by the Registrants of the following securities (collectively, the
"Certificates"):
1. $47,129,000 (approximate) aggregate principal amount of 6.125%
BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class A-1 (the "Class A-1
Certificates");
2. $51,893,000 (approximate) aggregate principal amount of 6.650%
BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class A-2 (the "Class A-2
Certificates");
3. $20,316,000 (approximate) aggregate principal amount of 6.950%
BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class A-3 (the "Class A-3
Certificates");
<PAGE>
Bank of America National Trust and Savings Association
Bank of America, FSB
Page Two
June 13, 1996
4. $26,068,000 (approximate) aggregate principal amount of 7.300%
BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class A-4 (the "Class A-4
Certificates");
5. $28,483,000 (approximate) aggregate principal amount of 7.550%
BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class A-5 (the "Class A-5
Certificates");
6. $27,040,000 (approximate) aggregate principal amount of 8.000%
BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class A-6 (the "Class A-6
Certificates");
7. $20,891,000 (approximate) aggregate principal amount of 7.800%
BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class A-7 (the "Class A-7
Certificates");
8. $15,361,000 (approximate) aggregate principal amount of 7.875%
BankAmerica Manufactured Housing Contract Trust,
Senior/Subordinate Pass-Through Certificates, Series 1996-1,
Class B-1 (the "Class B-1 Certificates" and, collectively with
the Class A-1 Certificates, the Class A-2 Certificates, the Class
A-3 Certificates, the Class A-4 Certificates, the Class A-5
Certificates, the Class A-6 Certificates, the Class A-7
Certificates and the Class B-1 Certificates, the "Publicly
Offered Certificates");
9. $8,604,417.44 (approximate) aggregate principal amount of 8.500%
BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class B-2 (the "Class B-2
Certificates"); and
10. BankAmerica Manufactured Housing Contract Trust, Senior/Subordinate
Pass-Through Certificates, Series 1996-1, Class R (the "Class R
Certificates").
The Certificates are to be issued pursuant to Pooling and Servicing
Agreement, dated as of June 1, 1996 (the "Agreement") among the Registrants,
BankAmerica Housing Services, an unincorporated division of BAFSB, as Servicer,
and The First
<PAGE>
Bank of America National Trust and Savings Association
Bank of America, FSB
Page Three
June 13, 1996
National Bank of Chicago, as Trustee. The Certificates will represent undivided
interests in a trust fund (the "Trust Fund") consisting primarily of a pool of
manufactured housing installment sales contracts and installment loan agreements
(the "Contracts") which the Registrants will convey to the Trustee, as trustee
for the Trust Fund, pursuant to the Agreement. The Class R Certificates will
have no stated principal balance.
In connection with this opinion, we have examined the following documents:
1. the Agreement;
2. the registration statement on Form S-3 (No. 333-3200) filed by the
Registrants relating to the Publicly Offered Certificates, and
Pre-Effective Amendments Nos. 1, 2, 3, 4 and 5 thereto as filed with
the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), and evidence satisfactory to us that
such registration statement, as so amended, became effective under
the Act on June 4, 1996 (as so amended and declared effective, the
"Registration Statement"); and
3. the base Prospectus and Prospectus Supplement relating to the Publicly
Offered Certificates as filed with the Commission on June 11, 1996
pursuant to Rule 424(b) under the Act (such Prospectus and Prospectus
Supplement being hereinafter collectively referred to as the
"Prospectus").
In such examination, we have assumed the genuineness of all signatures and
the authenticity of all items submitted to us as originals and the conformity
with originals of all items submitted to us as copies. In making our examination
of documents executed by entities other than the Registrants, we have assumed
that each other entity has the power and authority to execute and deliver, and
to perform and observe the provisions of such documents, and the due
authorization by each such entity of all requisite action and the due
execution and delivery of such documents by each such entity. To the extent
we have deemed necessary and proper, we have relied upon the representations and
warranties as to facts of the Registrants contained in the Agreement.
The opinions expressed herein are based upon current statutes, rules,
regulations, cases and official interpretive opinions, and cover certain items
that are not directly or definitively addressed by such authorities.
<PAGE>
Bank of America National Trust and Savings Association
Bank of America, FSB
Page Four
June 13, 1996
Based upon and subject to the foregoing, we are of the opinion that:
1. The statements contained in the Prospectus under the heading "Certain
Federal Income Tax Consequences," to the extent they constitute matters of law
or legal conclusions with respect thereto, are correct in all material respects,
under the assumptions stated therein and under existing law.
2. Assuming (i) the making of a valid election, (ii) compliance with the
Agreement, and (iii) compliance with any changes in the law, including any
amendments to the Internal Revenue Code of 1986, as amended (the "Code") or
applicable Treasury Regulations thereunder, (a) the Trust Fund will be
classified for federal income tax purposes as a "real estate mortgage investment
conduit" ("REMIC") within the meaning of Code Section 860D, (b) the Publicly
Offered Certificates and Class B-2 Certificates will be treated collectively as
the "regular interest" in such REMIC and (c) the Class R Certificates will be
treated as the single class of "residual interest" in such REMIC.
We express no opinion as to matters governed by laws of any jurisdiction
other than the substantive laws of the State of California, the laws of the
State of New York and the federal laws of the United States of America.
This opinion is furnished to you solely for use in connection with the
issuance and sale of the Certificates. We hereby consent to the filing of this
letter as an exhibit to a Current Report on Form 8-K filed by you in connection
with the Trust Fund. In giving such consent, we do not admit and we hereby
disclaim that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Commission thereunder, nor do we admit that we are experts
with respect to any part of the Registration Statement within the meaning of the
term "experts" as used in the Securities Act of 1933, as amended, or the rules
and regulations of the Commission thereunder.
Very truly yours,
/s/ Morrison & Foerster LLP
