_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
Reported): March 13, 1998
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., (as depositor
under the Pooling and Servicing Agreement, dated as of March 1, 1998
which provides for the issuance of IndyMac Manufactured Housing Contract
Pass-Through Certificates, Series 1998-1).
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
-----------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Delaware 333-29239 13-3320910
----------------------------- ----------- -------------------
<S> <C> <C>
(State of Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
11 Madison Avenue 10010
New York, New York --------------------
- ------------------ (Zip Code)
Address of Principal
Executive Offices
</TABLE>
Registrant's telephone number, including area code (212) 325-2000
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- ---------------------------------------------------------------------------
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ FIACHRA T. O'DRISCOLL
-------------------------------------
Fiachra T. O'Driscoll
Dated: April 2, 1998
EXECUTION COPY
- --------------------------------------------------------------------------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
as Depositor,
INDYMAC, INC.,
as Seller and Servicer,
and
THE BANK OF NEW YORK,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1998
$146,228,941
IndyMac Manufactured Housing Contract
Pass-Through Certificates,
Series 1998-1
- --------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO
CONVEYANCE OF CONTRACTS; CUSTODY OF CONTRACTS
Section 2.01. Conveyance of Contracts and Other Rights . . . . . . . . . 30
Section 2.02. Filing; Name Change or Relocation . . . . . . . . . . . . 31
Section 2.03. Acceptance by Trustee . . . . . . . . . . . . . . . . . . 33
Section 2.04. Conditions to Closing . . . . . . . . . . . . . . . . . . 33
Section 2.05. Contribution of Assets . . . . . . . . . . . . . . . . . . 33
Section 2.06. Execution and Authentication of Certificates . . . . . . . 33
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the Seller . . . . . 35
Section 3.02. Representations and Warranties as to Each Contract . . . . 36
Section 3.03. Representations and Warranties as to the Contracts . . . . 40
Section 3.04. Representations and Warranties as to the Contract Files . 41
Section 3.05. Repurchase of Contracts for Breach . . . . . . . . . . . . 41
Section 3.06. Representation and Warranty as to the Depositor . . . . . 43
ARTICLE FOUR
THE CERTIFICATES
Section 4.01. The Certificates . . . . . . . . . . . . . . . . . . . . . 44
Section 4.02. Registration of Transfer and Exchange of Certificates . . 44
Section 4.03. Book-Entry Certificates . . . . . . . . . . . . . . . . . 46
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates . . . . 48
Section 4.05. Persons Deemed Owners . . . . . . . . . . . . . . . . . . 48
Section 4.06. Appointment of Paying Agent . . . . . . . . . . . . . . . 48
Section 4.07. Access to List of Certificateholder Names and Addresses . 49
Section 4.08. Authenticating Agents . . . . . . . . . . . . . . . . . . 49
Section 4.09. The Class A-R Certificates . . . . . . . . . . . . . . . . 49
ARTICLE FIVE
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 5.01. Responsibility for Contract Administration and Servicing . 52
Section 5.02. Standard of Care . . . . . . . . . . . . . . . . . . . . . 52
Section 5.03. Subservicing . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.04. Records . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.05. Inspection . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.06. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 54
Section 5.07. Enforcement . . . . . . . . . . . . . . . . . . . . . . . 55
Section 5.08. Hazard Insurance Policies . . . . . . . . . . . . . . . . 55
Section 5.09. Hazard Insurance Policy Collections; Consent to
Manufactured Home Transfers; Assumption Agreements . . . . 57
Section 5.10. Realization upon Defaulted Contracts . . . . . . . . . . . 57
Section 5.11. Costs and Expenses . . . . . . . . . . . . . . . . . . . . 58
Section 5.12. Trustee to Cooperate . . . . . . . . . . . . . . . . . . . 58
Section 5.13. Servicing and Other Compensation . . . . . . . . . . . . . 58
Section 5.14. REO Disposition . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE SIX
DISTRIBUTIONS
Section 6.01. Monthly Payments . . . . . . . . . . . . . . . . . . . . . 60
Section 6.02. Withdrawals from the Collection Account . . . . . . . . . 63
Section 6.03. Advances . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 6.04. Establishment of and Deposits in the Collection Account
and the Certificate Account . . . . . . . . . . . . . . . 65
Section 6.05. Transfer of Certificate Account . . . . . . . . . . . . . 66
Section 6.06. Transfer of Collection Account . . . . . . . . . . . . . . 66
ARTICLE SEVEN
REPORTS
Section 7.01. Monthly Reports . . . . . . . . . . . . . . . . . . . . . 67
Section 7.02. Servicer's Certificate . . . . . . . . . . . . . . . . . . 67
Section 7.03. Other Data . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.04. Annual Statement as to Compliance . . . . . . . . . . . . 67
Section 7.05. Annual Independent Public Accountants' Servicing Report . 67
Section 7.06. Statements to Certificateholders . . . . . . . . . . . . . 68
Section 7.07. Other Reports . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE EIGHT
INDEMNITIES; THE DEPOSITOR AND THE SERVICER
Section 8.01. Liabilities to Obligors . . . . . . . . . . . . . . . . . 71
Section 8.02. Tax Indemnification . . . . . . . . . . . . . . . . . . . 71
Section 8.03. Servicer's Indemnities . . . . . . . . . . . . . . . . . . 71
Section 8.04. Operation of Indemnities . . . . . . . . . . . . . . . . . 71
Section 8.05. Merger or Consolidation of the Depositor, the Seller
or the Servicer . . . . . . . . . . . . . . . . . . . . . 72
Section 8.06. Limitation on Liability of the Depositor and Others . . . 72
Section 8.07. Assignment by Servicer . . . . . . . . . . . . . . . . . . 72
Section 8.08. Successor to the Servicer . . . . . . . . . . . . . . . . 73
ARTICLE NINE
DEFAULT
Section 9.01. Events of Default . . . . . . . . . . . . . . . . . . . . 75
Section 9.02. Waiver of Defaults . . . . . . . . . . . . . . . . . . . . 76
Section 9.03. Trustee to Act; Appointment of Successor . . . . . . . . . 76
Section 9.04. Notification to Certificateholders . . . . . . . . . . . . 76
Section 9.05. Effect of Transfer . . . . . . . . . . . . . . . . . . . . 77
ARTICLE TEN
THE TRUSTEE
Section 10.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . 78
Section 10.02. Certain Matters Affecting the Trustee . . . . . . . . . . 79
Section 10.03. Trustee Not Liable for Certificates or Contracts . . . . 80
Section 10.04. Trustee May Own Certificates . . . . . . . . . . . . . . 80
Section 10.05. Servicer to Pay Fees and Expenses of Trustee . . . . . . 81
Section 10.06. Eligibility Requirements for Trustee . . . . . . . . . . 81
Section 10.07. Resignation and Removal of the Trustee . . . . . . . . . 82
Section 10.08. Successor Trustee . . . . . . . . . . . . . . . . . . . . 82
Section 10.09. Merger or Consolidation of Trustee . . . . . . . . . . . 83
Section 10.10. Appointment of Co-Trustee or Separate Trustee . . . . . . 83
Section 10.11. Appointment of Office or Agency . . . . . . . . . . . . . 84
Section 10.12. REMIC Administration . . . . . . . . . . . . . . . . . . 85
Section 10.13. Tax Matters . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE ELEVEN
TERMINATION
Section 11.01. Termination . . . . . . . . . . . . . . . . . . . . . . . 92
Section 11.02. Auction Call . . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
Section 12.01. Severability of Provisions . . . . . . . . . . . . . . . 96
Section 12.02. Limitation on Rights of Certificateholders . . . . . . . 96
Section 12.03. Acts of Certificateholders . . . . . . . . . . . . . . . 97
Section 12.04. Calculations . . . . . . . . . . . . . . . . . . . . . . 97
Section 12.05. Amendment . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 12.06. Recordation of Agreement . . . . . . . . . . . . . . . . 99
Section 12.07. Certificates Nonassessable and Fully Paid . . . . . . . . 99
Section 12.08. No Petition . . . . . . . . . . . . . . . . . . . . . . . 99
Section 12.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . 99
Section 12.10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 12.11. Merger and Integration of Documents . . . . . . . . . . . 100
Section 12.12. Headings . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 12.13. Counterparts . . . . . . . . . . . . . . . . . . . . . . 100
EXHIBITS
Exhibit A - Contract Schedule . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Face of Class A Certificates . . . . . . . . . . . B-1
Exhibit C - Form of Face of Class B Certificates . . . . . . . . . . . C-1
Exhibit D - Form of Reverse of Certificates. . . . . . . . . . . . . . D-1
Exhibit E - Form of Face of Class M Certificates . . . . . . . . . . . E-1
Exhibit F - Form of Face of Class A-R Certificates . . . . . . . . . . F-1
Exhibit G - Form of Face of Class X Certificates . . . . . . . . . . . G-1
Exhibit H - (Reserved) . . . . . . . . . . . . . . . . . . . . . . . . H-1
Exhibit I - Form of Certificate Assignment . . . . . . . . . . . . . . I-1
Exhibit J - Form of Servicer's Certificate . . . . . . . . . . . . . . J-1
Exhibit K - Form of Transfer Affidavit . . . . . . . . . . . . . . . . K-1
Exhibit L - Form of Investment Letter of Holder of Class A-R
Certificates . . . . . . . . . . . . . . . . . . . . . . L-1
This Pooling and Servicing Agreement, dated as of March 1, 1998, is
among Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"), IndyMac, Inc., as seller and servicer (respectively, the
"Seller" and the "Servicer"), and The Bank of New York, as trustee (the
"Trustee").
WITNESSETH:
In consideration of the premises and the mutual agreements hereinafter
set forth, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, unless the context
-----------
otherwise requires, the following words and phrases shall have the following
meanings:
"Accelerated Principal Distribution Amount" means, with respect to any
-----------------------------------------
Distribution Date, the positive difference, if any, between the Target
Overcollateralization Amount and the Current Overcollateralization Amount.
"Adjusted Certificate Principal Balance" means, with respect to any
--------------------------------------
Class of Subordinate Certificates and any Distribution Date, the Certificate
Principal Balance of the related Class as of the preceding Distribution Date,
after giving effect to the distributions made on the immediately preceding
Distribution Date, less any Liquidation Loss Amounts allocated to such Class
on such preceding Distribution Date.
"Advance" means, with respect to any Due Period and Contract that was
-------
Outstanding as of the first day of such Due Period, an amount, if any, of the
portion of each Monthly Payment allocable to interest that was not timely
made.
"Advance Reimbursement Amount" means any amount received or deemed to
----------------------------
be received by the Servicer pursuant to Section 6.03(c) in reimbursement of
an Advance made out of its own funds.
"Affiliate" means, with respect to any specified Person, any other
---------
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms
"controlling" or "controlled" have meanings correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement and all amend
---------
ments hereof and supplements hereto.
"Applicants" shall have the meaning specified in Section 4.07.
----------
"Appraised Value" means, with respect to any Manufactured Home or land
---------------
securing a Contract, (i) the value of such Manufactured Home or such land as
determined by a professional appraiser or an employee of the Servicer who, as
part of such employment, regularly appraises manufactured housing units or
land, as the case may be, or (ii) as an alternative with respect to any
Manufactured Home, as determined by reference to NADA book value or other
generally accepted reference books for determining the value of a
Manufactured Home.
"APR" of a Contract means the annual interest rate specified in such
---
Contract.
"Authenticating Agent" means an authenticating agent appointed pursuant
--------------------
to Section 4.08.
"Available Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, an amount equal to (i) the sum of (a) Monthly Payments received during
the related Due Period, (b) the Advances, if any, made by the Servicer in
respect of such Due Period and (c) to the extent not duplicative with amounts
described in clause (a), unscheduled payments received with respect to the
Contracts during the related Prepayment Period, including Principal
Prepayments, Net Liquidation Proceeds, net insurance proceeds, the proceeds
of the disposition of REO Properties, the Repurchase Price of each
Repurchased Contract and any other unscheduled payments, reduced by (ii) the
sum of (a) aggregate Repossession Profits and (b) amounts permitted to be
withdrawn by the Servicer from the Collection Account pursuant to Section
6.02(a)(i) through (a)(viii).
"Average Sixty-Day Delinquency Ratio" means, with respect to any
-----------------------------------
Distribution Date, the average of the Sixty-Day Delinquency Ratios for such
Distribution Date and the two immediately preceding Distribution Dates.
"Average Thirty-Day Delinquency Ratio" means, with respect to any
------------------------------------
Distribution Date, the average of the Thirty-Day Delinquency Ratios for such
Distribution Date and the two immediately preceding Distribution Dates.
"Benefit Plan" means an employee benefit plan subject to Section 406 of
------------
ERISA or Section 4975 of the Code.
"BNY" means The Bank of New York, and its successors.
---
"Book-Entry Certificate" means any Certificate registered in the name
----------------------
of the Depository or its nominee ownership of which is reflected on the books
of the Depository or on the books of a person maintaining an account with
such Depository (directly or as an indirect participant in accordance with
the rules of such Depository).
"Business Day" means any day other than (i) a Saturday or Sunday or (ii)
------------
a day on which banking institutions in the States of New York or California
are authorized or obligated by law or executive order to be closed.
"Carryover Interest Distribution Amount" means, with respect to a Class
--------------------------------------
of Certificates and a Distribution Date, the sum of (i) any Interest
Distribution Amount for such Class distributable on the preceding
Distribution Date but not distributed plus, to the extent legally
permissible, interest accrued on any such amount during the related Interest
Accrual Period at the related Pass-Through Rate and (ii) any amounts
distributable under clause (i) above or this clause (ii) on the preceding
Distribution Date but not distributed plus, to the extent legally
permissible, interest accrued on any such amount during the related Interest
Accrual Period at the related Pass-Through Rate.
"Certificate Account" means the custodial account or accounts created
-------------------
and maintained pursuant to Section 6.04.
"Certificate Owner" means, with respect to a Book-Entry Certificate, the
-----------------
person who is the beneficial owner of the related Certificate.
"Certificate Principal Balance" of each Class of Certificates means its
-----------------------------
Initial Certificate Principal Balance reduced by all distributions in respect
of principal of such Class.
"Certificate Register" and "Certificate Registrar" mean the register
-------------------- ---------------------
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 4.02.
"Certificateholder" or "Holder" means the Person in whose name a Certif
----------------- ------
icate is registered in the Certificate Register, except that, solely for the
purposes of giving any consent, notice, waiver, request or demand pursuant to
this Agreement, any Certificate registered in the name of the Depositor, the
Servicer or any Affiliate of the Servicer and any Certificate in respect of
which the Depositor, the Servicer or any Affiliate thereof is the Certificate
Owner (as shall be certified to the Trustee upon its request) shall be deemed
not to be outstanding and the Percentage Interest and Fractional Interest
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests or Fractional Interests necessary to
effect such consent, notice, waiver, request or demand has been obtained,
unless, in the case of (i) the Class A Certificates, all Class A Certificates
are held by such Persons, (ii) the Class M Certificates, all Class A
Certificates and Class M Certificates are held by such Persons, (iii) the
Class B-1 Certificates, all Class A Certificates, Class M Certificates and
Class B-1 Certificates are held by such Persons or (iv) the Class B-2 Certifi
cates, all Certificates are held by such Persons, or, in each case, the
Certificates of the related Class or Classes have been fully paid.
"Certificates" means the Class A Certificates, the Class B Certificates,
------------
the Class M Certificates and the Class X Certificates.
"Class" means all Certificates the form of which is identical except for
-----
variation in denomination, principal amount or owner or designation of class.
"Class A Certificate Principal Balance" means, at any time, the Class A
-------------------------------------
Initial Certificate Principal Balance minus the sum of all amounts previously
distributed to the Class A Certificateholders pursuant to Section 6.01(a)(v),
(a)(vi) and (a)(xvi).
"Class A Certificates" means any one of the Class A-1, Class A-2, Class
--------------------
A-3, Class A-4, Class A-5 or Class A-R Certificates.
"Class A Distribution Amount" means, with respect to any Distribution
---------------------------
Date, the sum of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5
and Class A-R Distribution Amounts.
"Class A Formula Principal Distribution Amount" means, (i) with respect
---------------------------------------------
to any Distribution Date prior to the Cross-over Date, the entire Formula
Principal Distribution Amount, (ii) on any Distribution Date as to which the
Principal Distribution Tests are not satisfied, the entire Formula Principal
Distribution Amount, or (iii) on any other Distribution Date, the Class A
Percentage of the Formula Principal Distribution Amount. For any
Distribution Date, if the Class A Formula Principal Distribution Amount
exceeds the Class A Certificate Principal Balance less the Class A Unpaid
Certificate Principal Shortfall, then such amounts will be allocated first to
the Class M Formula Principal Distribution Amount, then to the Class B-1
Formula Principal Distribution Amount and finally to the Class B-2 Formula
Principal Distribution Amount.
"Class A Initial Certificate Principal Balance" means $115,520,100.
---------------------------------------------
"Class A Interest Distribution Amount" means, with respect to any
------------------------------------
Distribution Date, the sum of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5 and Class A-R Interest Distribution Amounts.
"Class A Percentage" means, with respect to any Distribution Date, the
------------------
percentage equivalent of a fraction (not to exceed one), the numerator of
which is the Class A Certificate Principal Balance immediately prior to such
Distribution Date and the denominator of which is the sum of the Class A
Certificate Principal Balance, the Class M Adjusted Certificate Principal
Balance and the Class B Adjusted Certificate Principal Balance, each
immediately prior to such Distribution Date.
"Class A Unpaid Certificate Principal Shortfall" means, with respect to
----------------------------------------------
any Distribution Date, the excess, if any, of all Formula Principal
Distribution Amounts distributable on the Class A Certificates over the
actual amount distributed to the Class A Certificateholders in respect of
Formula Principal Distribution Amounts.
"Class A-R Certificate" means the Certificate designated Class A-R,
---------------------
executed and authenticated as provided herein, substantially in the form set
forth in Exhibit F and H.
"Class A-R Certificate Principal Balance" means, at any time, the Class
---------------------------------------
A-R Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class A-R Certificateholders pursuant to
Section 6.01(a)(v), (a)(vi)(A) and (a)(xvi).
"Class A-R Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, the aggregate amount distributed to the Class A-R Certificateholders
pursuant to Section 6.01(a).
"Class A-R Initial Certificate Principal Balance" means $100.
-----------------------------------------------
"Class A-R Pass-Through Rate" means 6.5000% per annum.
---------------------------
"Class A-1 Certificate" means any one of the Certificates designated
---------------------
Class A-1, executed and authenticated as provided herein, substantially in
the form set forth in Exhibits B, D and I.
"Class A-1 Certificate Principal Balance" means, at any time, the Class
---------------------------------------
A-1 Initial Certificate Principal Balance minus the sum of all amounts pre-
viously distributed to the Class A-1 Certificateholders pursuant to Section
6.01(a)(v), (a)(vi)(B) and (a)(xvi).
"Class A-1 Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, the aggregate amount distributed to Class A-1 Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class A-1 Initial Certificate Principal Balance" means $7,000,000.
-----------------------------------------------
"Class A-1 Interest Distribution Amount" means, with respect to any
--------------------------------------
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class A-1 Pass-Through Rate on the Class A-1
Certificate Principal Balance as of the immediately preceding Distribution
Date (or, in the case of the first Distribution Date, on the Class A-1
Initial Certificate Principal Balance).
"Class A-1 Pass-Through Rate" means 5.6875% per annum.
---------------------------
"Class A-2 Certificate" means any one of the Certificates designated as
---------------------
Class A-2, executed and authenticated as provided herein, substantially in
the form set forth in Exhibits B, D and I.
"Class A-2 Certificate Principal Balance" means, at any time, the Class
---------------------------------------
A-2 Initial Certificate Principal Balance minus the sum of all amounts pre-
viously distributed to the Class A-2 Certificateholders pursuant to Section
6.01(a)(v), (a)(vi)(C) and (a)(xvi).
"Class A-2 Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, the aggregate amount distributed to the Class A-2 Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class A-2 Initial Certificate Principal Balance" means $26,850,000.
-----------------------------------------------
"Class A-2 Interest Distribution Amount" means, with respect to any
--------------------------------------
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class A-2 Pass-Through Rate on the Class A-2
Certificate Principal Balance as of the immediately preceding Distribution
Date (or, in the case of the first Distribution Date, on the Class A-2
Initial Certificate Principal Balance).
"Class A-2 Pass-Through Rate" means 6.3900% per annum.
---------------------------
"Class A-3 Certificate" means any one of the Certificates designated
---------------------
Class A-3, executed and authenticated as provided herein, substantially in
the form set forth in Exhibits B, D and I.
"Class A-3 Certificate Principal Balance" means, at any time, the Class
---------------------------------------
A-3 Initial Certificate Principal Balance minus the sum of all amounts pre-
viously distributed to the Class A-3 Certificateholders pursuant to Section
6.01(a)(v), (a)(vi)(D) and (a)(xvi).
"Class A-3 Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, the aggregate amount distributed to the Class A-3 Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class A-3 Initial Certificate Principal Balance" means $24,350,000.
-----------------------------------------------
"Class A-3 Interest Distribution Amount" means, with respect to any
--------------------------------------
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class A-3 Pass-Through Rate on the Class A-3
Certificate Principal Balance as of the immediately preceding Distribution
Date (or, in the case of the first Distribution Date, on the Class A-3
Initial Certificate Principal Balance).
"Class A-3 Pass-Through Rate" means 6.3700% per annum.
---------------------------
"Class A-4 Certificate" means any one of the Certificates designated
---------------------
Class A-4, executed and authenticated as provided herein, substantially in
the form set forth in Exhibits B, D and I.
"Class A-4 Certificate Principal Balance" means, at any time, the Class
---------------------------------------
A-4 Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class A-4 Certificateholders pursuant to
Section 6.01(a)(v), 6.01(a)(vi)(E) and (a)(xvi).
"Class A-4 Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, the aggregate amount distributed to the Class A-4 Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class A-4 Initial Certificate Principal Balance" means $18,300,000.
-----------------------------------------------
"Class A-4 Interest Distribution Amount" means, with respect to any
--------------------------------------
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class A-4 Pass-Through Rate on the Class A-4
Certificate Principal Balance as of the immediately preceding Distribution
Date (or, in the case of the first Distribution Date, on the Class A-4
Initial Certificate Principal Balance).
"Class A-4 Pass-Through Rate" means 6.4900% per annum.
---------------------------
"Class A-5 Certificate" means any one of the Certificates designated
---------------------
Class A-5, executed and authenticated as provided herein, substantially in
the form set forth in Exhibits B, D and I.
"Class A-5 Certificate Principal Balance" means, at any time, the Class
---------------------------------------
A-5 Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class A-5 Certificateholders pursuant to
Section 6.01(a)(v), (a)(vi)(F) and (a)(xvi).
"Class A-5 Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, the aggregate amount distributed to the Class A-5 Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class A-5 Initial Certificate Principal Balance" means $39,020,000.
-----------------------------------------------
"Class A-5 Interest Distribution Amount" means, with respect to any
--------------------------------------
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class A-5 Pass-Through Rate on the Class A-5
Certificate Principal Balance as of the immediately preceding Distribution
Date (or, in the case of the first Distribution Date, on the Class A-5
Initial Certificate Principal Balance).
"Class A-5 Pass-Through Rate" means, with respect to any Distribution
---------------------------
Date, the lesser of (i) 6.9600% per annum and (ii) the Weighted Average Net
Contract Rate.
"Class B Adjusted Certificate Principal Balance" means, at any time, the
----------------------------------------------
sum of the Class B-1 Adjusted Certificate Principal Balance and the Class B-2
Adjusted Certificate Principal Balance.
"Class B Certificate" means any one of the Class B-1 or Class B-2
-------------------
Certificates.
"Class B Certificate Principal Balance" means, at any time, the sum of
-------------------------------------
the Class B-1 Certificate Principal Balance and the Class B-2 Certificate
Principal Balance.
"Class B Initial Certificate Principal Balance" means $19,009,841.
---------------------------------------------
"Class B Percentage" means, for any Distribution Date, the percentage
------------------
derived from the fraction (which shall not be greater than one), the
numerator of which is the Class B Adjusted Certificate Principal Balance
immediately prior to such Distribution Date and the denominator of which is
the sum of the Class A Certificate Principal Balance, the Class M Adjusted
Certificate Principal Balance and the Class B Adjusted Certificate Principal
Balance, each immediately prior to such Distribution Date.
"Class B-1 Adjusted Certificate Principal Balance" means, with respect
------------------------------------------------
to any Distribution Date, the Class B-1 Certificate Principal Balance as of
such Distribution Date minus the Class B-1 Liquidation Loss Amount, if any.
"Class B-1 Certificate" means any one of the Certificates designated
---------------------
Class B-1, executed and authenticated as provided herein, substantially in
the form set forth in Exhibits C, D and I.
"Class B-1 Certificate Principal Balance" means, at any time, the Class
---------------------------------------
B-1 Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class B-1 Certificateholders pursuant to
Section 6.01(a)(xi) and (a)(xii).
"Class B-1 Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, the aggregate amount distributed to the Class B-1 Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class B-1 Formula Principal Distribution Amount" means (i) with respect
-----------------------------------------------
to any Distribution Date as of which the Class A Certificate Principal
Balance and the Class M Certificate Principal Balance have not been reduced
to zero and prior to the Cross-over Date, zero, (ii) on any Distribution Date
as to which the Principal Distribution Tests are not satisfied and the Class
A Certificate Principal Balance and the Class M Certificate Principal Balance
have not been reduced to zero, zero, (iii) on any Distribution Date as to
which the Principal Distribution Tests are not satisfied and the Class A
Certificate Principal Balance and the Class M Certificate Principal Balance
have been reduced to zero, the entire Formula Principal Distribution Amount,
or (iv) on any other Distribution Date, the Class B Percentage of the Formula
Principal Distribution Amount. For any Distribution Date, if the Class B-1
Formula Principal Distribution Amount exceeds the Class B-1 Certificate
Principal Balance less the Class B-1 Unpaid Certificate Principal Shortfall,
then such amounts will be allocated to the Class B-2 Formula Principal
Distribution Amount.
"Class B-1 Initial Certificate Principal Balance" means $12,429,000.
-----------------------------------------------
"Class B-1 Interest Distribution Amount" means, with respect to any
--------------------------------------
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class B-1 Pass-Through Rate on the Class B-1
Adjusted Certificate Principal Balance as of the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, on the
Class B-1 Initial Certificate Principal Balance).
"Class B-1 Liquidation Loss Amount" means, with respect to any
---------------------------------
Distribution Date, the lesser of (i) the amount, if any, by which the sum of
the Class A, Class M and Class B-1 Certificate Principal Balances exceeds the
Pool Balance and (ii) the Class B-1 Certificate Principal Balance, in each
case after giving effect to all distributions of principal made on such
Distribution Date.
"Class B-1 Liquidation Loss Interest Amount" means, with respect to any
------------------------------------------
Distribution Date, interest accrued during the related Interest Accrual
Period at the Class B-1 Pass-Through Rate on the Class B-1 Liquidation Loss
Amount, if any, for the immediately preceding Distribution Date.
"Class B-1 Pass-Through Rate" means, with respect to any Distribution
---------------------------
Date, the lesser of (i) 7.5900% per annum and (ii) the Weighted Average Net
Contract Rate.
"Class B-1 Unpaid Certificate Principal Shortfall" means, with respect
------------------------------------------------
to any Distribution Date, the excess, if any, of all Formula Principal
Distribution Amounts distributable on the Class B-1 Certificates over the
actual amount distributed to the Class B-1 Certificateholders in respect of
Formula Principal Distribution Amounts.
"Class B-1 Unpaid Liquidation Loss Interest Shortfall" means, with
----------------------------------------------------
respect to any Distribution Date, the sum of (i) any Liquidation Loss
Interest Amount distributable on the preceding Distribution Date but not
distributed plus, to the extent legally permissible, interest accrued on any
such amount during the related Interest Accrual Period at the Class B-1
Pass-Through Rate and (ii) any amounts distributable under clause (i) above
or this clause (ii) on the preceding Distribution Date but not distributed
plus, to the extent legally permissible, interest accrued on any such amount
during the related Interest Accrual Period at the Class B-1 Pass-Through
Rate.
"Class B-2 Adjusted Certificate Principal Balance" means, as of any
------------------------------------------------
Distribution Date, the Class B-2 Certificate Principal Balance as of such
Distribution Date minus the Class B-2 Liquidation Loss Amount, if any.
"Class B-2 Certificate" means any one of the Certificates designated
---------------------
Class B-2, executed and authenticated as provided herein, substantially in
the form set forth in Exhibits C, D and I.
"Class B-2 Certificate Principal Balance" means, at any time, the Class
---------------------------------------
B-2 Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class B-2 Certificateholders pursuant to
Section 6.01(a)(xiv) and (a)(xv).
"Class B-2 Distribution Amount" means, with respect to any Distribution
-----------------------------
Date, the aggregate amount distributed to the Class B-2 Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class B-2 Floor Amount" means, with respect to a Distribution Date (i)
----------------------
1.50% of the Cut-off Date Pool Balance, if the Class A Certificate Principal
Balance, the Class M Certificate Principal Balance and the Class B-1
Certificate Principal Balance have not been reduced to zero prior to such
Distribution Date, and (ii) zero, if the Class A Certificate Principal
Balance, the Class M Certificate Principal Balance and the Class B-1
Certificate Principal Balance have been reduced to zero prior to such
Distribution Date.
"Class B-2 Formula Principal Distribution Amount" means, with respect
-----------------------------------------------
to any Distribution Date, the Formula Principal Distribution Amount less the
sum of the Class A, Class M and Class B-1 Formula Principal Distribution
Amounts. If the Class A and Class M Certificate Principal Balances have not
been reduced to zero on or before a Distribution Date, then amounts otherwise
allocable as Class B-2 Formula Principal Distribution Amounts shall be
allocated first to the Class M Formula Principal Distribution Amount and then
to the Class A Formula Principal Distribution Amount, to the extent that
allocation of such amounts to the Class B-2 Formula Principal Distribution
Amount would reduce the Class B-2 Certificate Principal Balance below the
Class B-2 Floor Amount.
"Class B-2 Initial Certificate Principal Balance" means $6,580,841.
-----------------------------------------------
"Class B-2 Interest Distribution Amount" means, with respect to any
--------------------------------------
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class B-2 Pass-Through Rate on the Class B-2
Adjusted Certificate Principal Balance as of the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, on the
Class B-2 Initial Certificate Principal Balance).
"Class B-2 Liquidation Loss Amount" means, with respect to any
---------------------------------
Distribution Date, the lesser of (i) the amount, if any, by which the sum of
the Class A, Class M, Class B-1 and Class B-2 Certificate Principal Balances
exceeds the Pool Balance and (ii) the Class B-2 Certificate Principal
Balance, in each case after giving effect to all distributions of principal
made on such Distribution Date.
"Class B-2 Liquidation Loss Interest Amount" means, with respect to any
------------------------------------------
Distribution Date, interest accrued during the related Interest Accrual
Period at the Class B-2 Pass-Through Rate on the Class B-2 Liquidation Loss
Amount, if any, for the immediately preceding Distribution Date.
"Class B-2 Pass-Through Rate" means, with respect to any Distribution
---------------------------
Date, the lesser of (i) 9.0000% per annum and (ii) the Weighted Average Net
Contract Rate.
"Class B-2 Unpaid Certificate Principal Shortfall" means, with respect
------------------------------------------------
to any Distribution Date, the excess, if any, of all Formula Principal
Distribution Amounts distributable on the Class B-2 Certificates over the
actual amount distributed to the Class B-2 Certificateholders in respect of
Formula Principal Distribution Amounts.
"Class B-2 Unpaid Liquidation Loss Interest Shortfall" means, with
----------------------------------------------------
respect to any Distribution Date, the sum of (i) any Liquidation Loss
Interest Amount distributable on the preceding Distribution Date but not
distributed plus, to the extent legally permissible, interest accrued on any
such amount during the related Interest Accrual Period at the Class B-2
Pass-Through Rate and (ii) any amounts distributable under clause (i) above
or this clause (ii) on the preceding Distribution Date but not distributed
plus, to the extent legally permissible, interest accrued on any such amount
during the related Interest Accrual Period at the Class B-2 Pass-Through
Rate.
"Class M Adjusted Certificate Principal Balance" means, with respect to
----------------------------------------------
any Distribution Date, the Class M Certificate Principal Balance as of such
Distribution Date minus the Class M Liquidation Loss Amount, if any.
"Class M Certificate" means any one of the Certificates designated Class
-------------------
M, executed and authenticated as provided herein, substantially in the form
set forth in Exhibits E and I.
"Class M Certificate Principal Balance" means, at any time, the Class
-------------------------------------
M Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class M Certificateholders pursuant to Section
6.01(a)(viii) and (a)(ix).
"Class M Distribution Amount" means, with respect to any Distribution
---------------------------
Date, the aggregate amount distributed to the Class M Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class M Formula Principal Distribution Amount" means, (i) with respect
---------------------------------------------
to any Distribution Date as to which the Class A Certificate Principal
Balance has not been reduced to zero and prior to the Cross-over Date, zero,
(ii) on any Distribution Date as to which the Principal Distribution Tests
are not satisfied and the Class A Certificate Principal Balance has not been
reduced to zero, zero, (iii) on any Distribution Date as to which the
Principal Distribution Tests are not satisfied and the Class A Certificate
Principal Balance has been reduced to zero, the Formula Principal
Distribution Amount or (iv) on any other Distribution Date, the Class M
Percentage of the Formula Principal Distribution Amount. For any
Distribution Date, if the Class M Formula Principal Distribution Amount
exceeds the Class M Certificate Principal Balance less the Class M Unpaid
Certificate Principal Shortfall, then such amounts will be allocated first to
the Class B-1 Formula Principal Distribution Amount and then to the Class B-2
Formula Principal Distribution Amount.
"Class M Initial Certificate Principal Balance" means $11,699,000.
---------------------------------------------
"Class M Interest Distribution Amount" means, with respect to any
------------------------------------
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class M Pass-Through Rate on the Class M
Adjusted Certificate Principal Balance as of the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, on the
Class M Initial Certificate Principal Balance).
"Class M Liquidation Loss Amount" means, with respect to any
-------------------------------
Distribution Date, the lesser of (i) the amount, if any, by which the sum of
the Class A and Class M Certificate Principal Balances exceeds the Pool
Balance and (ii) the Class M Certificate Principal Balance, in each case
after giving effect to all distributions of principal made on such
Distribution Date.
"Class M Liquidation Loss Interest Amount" means, with respect to any
----------------------------------------
Distribution Date, interest accrued during the related Interest Accrual
Period at the Class M Pass-Through Rate on the Class M Liquidation Loss
Amount, if any, for the immediately preceding Distribution Date.
"Class M Pass-Through Rate" means, with respect to any Distribution
-------------------------
Date, the lesser of (i) 7.1100% per annum and (ii) the Weighted Average Net
Contract Rate.
"Class M Percentage" means, for any Distribution Date, the percentage
------------------
derived from the fraction (which shall not be greater than one), the
numerator of which is the Class M Adjusted Certificate Principal Balance
immediately prior to such Distribution Date and the denominator of which is
the sum of the Class A Certificate Principal Balance, the Class M Adjusted
Certificate Principal Balance and the Class B Adjusted Certificate Principal
Balance, each immediately prior to such Distribution Date.
"Class M Unpaid Certificate Principal Shortfall" means, with respect to
----------------------------------------------
any Distribution Date, the excess, if any, of all Formula Principal
Distribution Amounts distributable on the Class M Certificates over the
actual amount distributed to the Class M Certificates in respect of Formula
Principal Distribution Amounts.
"Class M Unpaid Liquidation Loss Interest Shortfall" means, with respect
--------------------------------------------------
to any Distribution Date, the sum of (i) any Liquidation Loss Interest Amount
distributable on the preceding Distribution Date but not distributed plus, to
the extent legally permissible, interest accrued on any such amount during
the related Interest Accrual Period at the Class M Pass-Through Rate and (ii)
any amounts distributable under clause (i) above or this clause (ii) on the
preceding Distribution Date but not distributed plus, to the extent legally
permissible, interest accrued on any such amount during the related Interest
Accrual Period at the Class M Pass-Through Rate.
"Class X Certificates" means any one of the Certificates designated
--------------------
Class X, executed and authenticated as provided herein, substantially in the
form set forth in Exhibits G, H and I.
"Class X Components" means each of the separate notional balance classes
------------------
treated as "regular interests" and defined in Section 10.12(g).
"Class X Distribution Amount" means, with respect to any Distribution
---------------------------
Date, the aggregate amount distributed to the Class X Certificateholders on
such Distribution Date pursuant to Section 6.01(a)(xvii).
"Class X Strip Amount" shall have the meaning specified in Section
--------------------
10.12(g).
"Closing Date" means March 13, 1998.
------------
"Code" means The Internal Revenue Code of 1986, as amended.
----
"Collection Account" means the custodial account or accounts created and
------------------
maintained pursuant to Section 6.04.
"Computer Tape" means the computer tape generated by the Seller that
-------------
provides information relating to the Contracts.
"Contract File" means, with respect to (1) each Contract that is not a
-------------
Land Home Contract, (i) the original copy of the Contract; (ii) in the case
of a Contract not originated by IndyMac or an Affiliate thereof, the
assignment of the related Contract from the originator to IndyMac or such
Affiliate; and (iii) any extension, modification or waiver agreement(s), and
(2) each Land Home Contract, (i) the original copy of the Contract; (ii) the
related Mortgage with evidence of recording thereon; (iii) an assignment in
recordable form of the Mortgage to the Trustee (which may be a blanket
assignment if permitted in the applicable jurisdiction); (iv) in the case of
a Contract not originated by IndyMac or an Affiliate thereof, the assignment
of the related Contract from the originator to IndyMac or such Affiliate; (v)
if applicable, the power of attorney granted to the Trustee; and (vi) any
extension, modification or waiver agreement(s).
"Contract Pool" means the pool of Contracts held in the Trust Fund.
-------------
"Contract Principal Balance" means, with respect to any Contract and any
--------------------------
date of determination, the unpaid principal balance of such Contract as of
such date of determination.
"Contract Schedule" means the list identifying each Contract
-----------------
constituting part of the corpus of the Trust Fund, which list is attached
hereto as Exhibit A, and which identifies each Contract by contract number
and name of the Obligor and sets forth the Contract Principal Balance of each
Contract as of the Cut-off Date.
"Contracts" means the manufactured housing installment sales contracts
---------
and installment loan agreements described in the Contract Schedule and
constituting part of the Trust Fund, which Contracts are to be sold and
assigned by the Depositor to the Trustee and which are the subject of this
Agreement.
"Corporate Trust Office" means the principal office of the Trustee at
----------------------
which at any particular time its corporate business shall be administered,
which office at the date of execution of this Agreement is located at 101
Barclay Street, New York, New York 10286, Attention: Corporate Trust - MBS
Administration.
"Cross-over Date" means the later to occur of (i) the October 2002
---------------
Distribution Date and (ii) the first Distribution Date as of which the
percentage equivalent of a fraction (which shall not be greater than one) the
numerator of which is the aggregate Adjusted Certificate Principal Balance of
the Subordinate Certificates plus the Current Overcollateralization Amount
for such Distribution Date and the denominator of which is the Pool Balance
on such Distribution Date, equals or exceeds 1.75 times the percentage
equivalent of a fraction (which shall not be greater than one) the numerator
of which is the aggregate Initial Certificate Principal Balance of the
Subordinate Certificates and the denominator of which is the Cut-off Date
Pool Balance.
"Cumulative Realized Loss Test" means, with respect to any Distribution
-----------------------------
Date, the following:
(i) if such Distribution Date occurs between October 2002 and
March 2004, the Cumulative Realized Loss Test will be satisfied if
Cumulative Realized Losses as of such Distribution Date are less than or
equal to 7.00% of the Cut-off Date Pool Balance;
(ii) if such Distribution Date occurs between April 2004 and March
2005, the Cumulative Realized Loss Test will be satisfied if Cumulative
Realized Losses as of such Distribution Date are less than or equal to
8.00% of the Cut-off Date Pool Balance; and
(iii) if such Distribution Date occurs after March 2005, the
Cumulative Realized Loss Test will be satisfied if Cumulative Realized
Losses as of such Distribution Date are less than or equal to 9.00% of
the Cut-off Date Pool Balance;
"Cumulative Realized Losses" means, with respect to any Distribution
--------------------------
Date, the sum of Realized Losses with respect to such Distribution Date and
each preceding Distribution Date.
"Current Overcollateralization Amount" means, with respect to any
------------------------------------
Distribution Date, the positive difference, if any, between the Pool Balance
and the sum of the Certificate Principal Balances of all then-outstanding
Classes of Certificates.
"Current Realized Loss Ratio" means, with respect to any Distribution
---------------------------
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate Realized Losses as of such Distribution Date and each of the two
immediately preceding Distribution Dates, multiplied by four, and the
denominator of which is the arithmetic average of the Pool Balance as of the
third preceding Distribution Date and the Pool Balance as of such
Distribution Date.
"Cut-off Date" means March 1, 1998.
------------
"Cut-off Date Pool Balance" means $146,228,941.49.
-------------------------
"Definitive Certificates" shall have the meaning specified in Section
-----------------------
4.03(b).
"Deposit Date" means, with respect to any Distribution Date, the
------------
Business Day immediately preceding such Distribution Date.
"Depositor" means Credit Suisse First Boston Mortgage Securities Corp.,
---------
or its successor in interest or any successor under this Agreement appointed
as herein provided.
"Depository" means DTC, the nominee of which is Cede & Co., as the
----------
registered Holder of the Book-Entry Certificates, and its successors. The
Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York.
"Depository Participant" means a broker, dealer, bank or other financial
----------------------
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date" means, with respect to any Distribution Date, the
------------------
third Business Day preceding such Distribution Date.
"Distribution Date" means the twenty-fifth day of any month, or if such
-----------------
day is not a Business Day, the first Business Day immediately succeeding such
day, commencing April 27, 1998.
"DTC" means The Depository Trust Company, and its successors.
---
"Due Date" means, with respect to any Contract, the day of the month
--------
specified in such Contract on which each Monthly Payment is due, exclusive of
any grace period.
"Due Period" means, with respect to a Distribution Date, the calendar
----------
month immediately preceding the month in which such Distribution Date occurs.
"Electronic Ledger" means the electronic master record of the Seller's
-----------------
manufactured housing installment sales contracts and installment loan
agreements clearly identifying each Contract that is part of the Trust Fund.
"Eligible Account" means an account that is either (i) maintained with
----------------
a depository institution organized under the laws of the United States or any
state, the deposits of which are insured by the Federal Deposit Insurance
Corporation to the fullest extent permitted by law, (a) the long-term deposit
rating or the long-term unsecured debt obligations of which (or in the case
of the principal bank in a bank holding company system, the long-term
unsecured debt obligations of such bank holding company, unless Moody's is a
Rating Agency) have received from each Rating Agency one of its two highest
long term ratings, (b) the short-term unsecured debt obligations of which are
rated in the highest short-term rating category by the Rating Agencies or
(c) the short term deposits or commercial paper of which is rated P-1 by
Moody's and, if rated by Fitch, F-1 by Fitch, (ii) a trust account maintained
with the Trustee in its corporate trust department in which the funds are
either uninvested or invested solely in Eligible Investments or (iii)
otherwise acceptable to each Rating Agency, as evidenced by a letter from
such Rating Agency, without a reduction or withdrawal of the rating of any
Rated Certificates.
"Eligible Investments" means one or more of the following:
--------------------
(i) obligations of, or guaranteed as to timely payments of
principal and interest by, the United States or any agency or
instrumentality thereof, which obligations are backed by the full faith
and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof,
provided that the long-term unsecured obligations of the party agreeing
to repurchase such obligations are at the time rated by each Rating
Agency in one of its two highest long term rating categories; and
provided further that the short-term debt obligations of such party
shall be rated P-1 by Moody's and, if rated by Fitch, F-1+ by Fitch;
(iii) federal funds, certificates of deposit, time deposits and
bankers' acceptances, each of which shall not have an original maturity
of more than 90 days, of any depository institution or trust company
incorporated under the laws of the United States or any State (including
those of the Trustee or its Affiliates); provided that the short-term
obligations of such depository institution or trust company shall have
received the highest rating by the Rating Agencies;
(iv) commercial paper (having original maturities of not more than
270 days) of any corporation incorporated under the laws of the United
States or any State; provided that such commercial paper shall be rated
P-1 by Moody's and, if rated by Fitch, F-1+ by Fitch;
(v) any money market or common trust fund rated in the highest
rating category by Moody's and acceptable to Fitch (including funds as
to which the Trustee may act as sponsor, manager, advisor or
depository); and
(vi) other obligations or securities that are acceptable as an
Eligible Investment to each Rating Agency, as evidenced by a letter from
such Rating Agency, and will not result in a reduction in or withdrawal
of the rating of any Rated Certificates;
provided, however, that no instrument shall be an Eligible Investment if such
instrument evidences a right to receive only interest payments with respect
to the obligations underlying such instrument; provided further, that no
instrument shall be an Eligible Investment unless such instrument matures on
the Deposit Date next succeeding the date of investment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
"Event of Default" means any of the events described in Section 9.01.
----------------
"Extension Fee" means any extension fee paid by the Obligor on a
-------------
Contract.
"Final Scheduled Distribution Date" means (i) in the case of the Class
---------------------------------
A-1 Certificates, the March 1999 Distribution Date and (ii) in the case of
Certificates other than the Class A-1 Certificates, the September 2028
Distribution Date.
"Fitch" means Fitch IBCA, Inc., and its successors.
-----
"Formula Principal Distribution Amount" means, with respect to any
-------------------------------------
Distribution Date, (a) the sum of (i) the principal components of all Monthly
Payments received during the related Due Period on the Contracts that were
Outstanding on the first day of such Due Period, to the extent not
duplicative with amounts described in clauses (ii) through (iv), and not
including any Monthly Payments received on Liquidated Contracts or
Repurchased Contracts; (ii) the amounts of all Principal Prepayments received
by the Servicer on the Contracts during the related Prepayment Period; (iii)
with respect to any Contract that became a Liquidated Contract during the
related Prepayment Period, the Contract Principal Balance thereof on the date
of liquidation thereof (determined without giving effect to such
liquidation); and (iv) with respect to any Contract that became a Repurchased
Contract during the related Prepayment Period, the Contract Principal Balance
thereof on the date of purchase or repurchase thereof (determined without
giving effect to such purchase or repurchase); less (b) the
Overcollateralization Reduction Amount, if any, for such Distribution Date.
"Fractional Interest" means, with respect to any Certificate of any
-------------------
Class, the product of (i) the Percentage Interest evidenced by such Certif-
icate multiplied by (ii) the amount derived from dividing the Certificate
Principal Balance of such Class by the sum of the Certificate Principal
Balances of Certificates of all Classes. For purposes of the foregoing, the
Class A-R and Class X Certificates will have a Certificate Principal Balance
of zero.
"Hazard Insurance Policy" means, with respect to each Contract, the
-----------------------
policy of fire and extended coverage insurance required to be maintained for
the related Manufactured Home pursuant to Section 5.07, which may be a
blanket insurance policy maintained by the Servicer.
"IndyMac" means IndyMac, Inc., and its successors.
-------
"Initial APR" has the meaning set forth in Section 3.02(n).
-----------
"Initial Period" means, with respect to each Step-Up Contract, the first
--------------
twelve months of such Contract.
"Interest Accrual Period" means, with respect to each Distribution Date,
-----------------------
(i) for the Class A-1 Certificates, the period commencing on the 25th day of
the preceding month through the 24th day of the month in which such
Distribution Date occurs (except that the first Interest Accrual Period for
the Class A-1 Certificates will be the period from the Closing Date through
April 24, 1998) and (ii) for all other Classes of Certificates, the calendar
month preceding the month in which the Distribution Date occurs. Interest on
the Certificates other than the Class A-1 Certificates shall be computed on
the basis of a 360-day year consisting of twelve 30-day months. Interest on
the Class A-1 Certificates shall be computed on the basis of a 360-day year
and the actual number of days in the applicable Interest Accrual Period.
"Interest Distribution Amount" means, with respect to a Class of
----------------------------
Certificates (other than the Class X Certificates) and a Distribution Date,
the amount of interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on, in the case of a Class A Certificate, the
Certificate Principal Balance of such Class of Certificates and, in the
case of a Class of Subordinate Certificates, the Adjusted Certificate
Principal Balance of such Class of Subordinate Certificates.
"Issuing REMIC" shall have the meaning set forth in Section 10.12(a).
-------------
"Land Home Contract" means a Contract that is secured, or intended to
------------------
be secured, by a lien on the real estate on which the related Manufactured
Home is located.
"Late Payment Fees" means any late payment fees paid by Obligors on
-----------------
Contracts, determined in accordance with the terms thereof.
"Lien" means any lien, claim, charge, security interest or other
----
encumbrance.
"Liquidated Contract" means any defaulted Contract as to which the
-------------------
Servicer has determined that all amounts it expects to recover from or on
account of such Contract have been recovered; provided that any defaulted
Contract in respect of which the related Manufactured Home and, in the case
of Land Home Contracts, Mortgaged Property have been realized upon and
disposed of and the proceeds of such disposition have been received shall be
deemed to be a Liquidated Contract.
"Liquidation Expenses" means all reasonable out-of-pocket expenses
--------------------
(exclusive of overhead expenses) incurred by the Servicer in connection with
the liquidation of any defaulted Contract, on or prior to the date on which
the related Manufactured Home and, in the case of Land Home Contracts,
Mortgaged Property are disposed of, including, without limitation, reasonable
legal fees and expenses, any unreimbursed amount expended by the Servicer
pursuant to Section 5.06 or 5.11 (to the extent such amount is reimbursable
pursuant to Section 5.06 or 5.08, as the case may be) respecting such
Contract and any unreimbursed expenditures for property taxes or for property
restoration or preservation that are related to such liquidation.
"Liquidation Loss Amount" means, with respect to each Distribution Date,
-----------------------
the amount, if any, by which (i) the aggregate Certificate Principal Balance
of all the Certificates, after all distributions have been made on such
Distribution Date, exceeds (ii) the Pool Balance.
"Liquidation Loss Interest Amount" means, with respect to a Class of
--------------------------------
Subordinate Certificates and a Distribution Date, interest accrued during the
related Interest Accrual Period at the related Pass-Through Rate on the
Liquidation Loss Amount for such Class as of the immediately preceding
Distribution Date.
"Liquidation Proceeds" means 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" means, with respect to any Contract, the fraction,
-------------------
expressed as a percentage, the numerator of which is the original principal
balance of such Contract, and the denominator of which is the Value of such
Contract.
"Manufactured Home" means a unit of manufactured housing that meets the
-----------------
requirements of Section 25(e)(10) of the Code, including all accessions
thereto, securing the indebtedness of the Obligor under a Contract.
"Monthly Payment" means, with respect to any Contract, the amount of
---------------
each monthly payment payable by the related Obligor in accordance with the
terms thereof without giving effect to any adjustments by reason of
bankruptcy or similar proceedings or any waiver, extension or grace period.
"Monthly Report" means the monthly report described in Section 7.01.
--------------
"Monthly Servicing Fee" means, as of any Distribution Date, an amount
---------------------
equal to one-twelfth of 1.00% (or, in the case of a successor Servicer
engaged at any time after IndyMac is no longer the Servicer, the percentage
agreed upon pursuant to Section 8.08) of the Pool Balance for the immediately
preceding Distribution Date.
"Monthly Trustee Fee" means, as of any Distribution Date, an amount
-------------------
equal to one-twelfth of the Trustee Fee Rate multiplied by the Pool Balance
with respect to such Distribution Date.
"Moody's" means Moody's Investors Service, Inc., and its successors.
-------
"Mortgage" means the mortgage creating a first lien on an estate in fee
--------
simple in the real property securing a Contract.
"Mortgaged Property" means the property subject to a Mortgage.
------------------
"Net Liquidation Loss" means, with respect to a Liquidated Contract, the
--------------------
amount, if any, by which (i) the unpaid principal balance of such Liquidated
Contract plus accrued and unpaid interest thereon at the related APR to the
date on which such Contract became a Liquidated Contract exceeds (ii) the
related Net Liquidation Proceeds.
"Net Liquidation Proceeds" means, with respect to any Liquidated
------------------------
Contract, Liquidation Proceeds net of the sum of (i) Liquidation Expenses and
(ii) any amount required to be paid to the Obligor or any other party with an
interest in the Manufactured Home or any related Mortgaged Property that is
senior to the interest of the Trust Fund.
"Nonrecoverable Advance" means any Advance made or proposed to be made
----------------------
pursuant to Section 6.03 that the Servicer believes, in its good faith
judgment, is not, or if made would not be, ultimately recoverable from
Liquidation Proceeds or otherwise from the related Contract. 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 Officer's
Certificate of the Servicer delivered to the Trustee and stating the reasons
for such determination.
"Obligor" means each person who is indebted under a Contract or who has
-------
acquired a Manufactured Home subject to a Contract.
"Officer's Certificate" means a certificate signed by the President, a
---------------------
Vice President, the Treasurer, an Assistant Treasurer, the Secretary, an
Assistant Secretary or any other duly authorized officer of the Depositor or
the Servicer, as the case may be, and delivered to the Trustee as required by
this Agreement.
"Opinion of Counsel" means a written opinion of counsel, who may be the
------------------
counsel for the Depositor or the Servicer, addressed and delivered to the
Trustee and any other entity or entities specified herein who shall be
reasonably acceptable to the Trustee.
"Outstanding" means, with respect to any Contract as to the time of
-----------
reference thereto, a Contract that has not been fully prepaid and has not
become either a Liquidated Contract or a Repurchased Contract prior to such
time of reference.
"Outstanding Amount Advanced" means, with respect to any Distribution
---------------------------
Date, the aggregate of all Advances remitted by the Servicer pursuant to
Section 6.03 less the aggregate of all Advance Reimbursement Amounts actually
received prior to such Distribution Date.
"Overcollateralization Reduction Amount" means (i) for any Distribution
--------------------------------------
Date on or prior to the Distribution Date on which the Class A-1 Certificate
Principal Balance is reduced to zero, zero, and (ii) for any other
Distribution Date, the positive difference, if any, between the Current
Overcollateralization Amount and the Target Overcollateralization Amount.
"Ownership Interest" means any legal or beneficial, direct or indirect,
------------------
ownership or other interest.
"Pass-Through Rate" means, as to any Class of Certificates, the Class
-----------------
A-1 Pass-Through Rate, the Class A-2 Pass-Through Rate, the Class A-3
Pass-Through Rate, the Class A-4 Pass-Through Rate, the Class A-5
Pass-Through Rate, the Class A-R Pass-Through Rate, the Class M Pass-Through
Rate, the Class B-1 Pass-Through Rate or the Class B-2 Pass-Through Rate, as
the case may be.
"Paying Agent" means any paying agent appointed pursuant to Section
------------
4.06.
"Percentage Interest" means, with respect to a Certificate of any Class,
-------------------
the percentage interest evidenced thereby in distributions required to be
made on the Certificates of such Class, such percentage interest being equal
to the percentage obtained by dividing the denomination of such Certificate
by the aggregate of the denominations of all of the outstanding Certificates
of such Class (or, in the case of a Class X Certificate, being equal to the
percentage specified on the face of such Class X Certificate).
"Permitted Transferee" means any Person other than (i) the United
--------------------
States, a State or any political subdivision thereof, any possession of the
United States or any agency or instrumentality of any of the foregoing (other
than an instrumentality that is a corporation if all of its activities are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by any such governmental
unit); (ii) a foreign government, international organization or agency or
instrumentality of either of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by any such governmental
unit); (iii) an organization that is exempt from tax imposed by Chapter 1 of
the Code (including the tax imposed by Code Section 511 on unrelated business
taxable income) on any excess inclusions (as defined in Code Section
860E(c)(1)) with respect to a Class A-R Certificate (except certain farmers'
cooperatives described in Code Section 521); (iv) rural electric and
telephone cooperatives described in Code Section 1381(a)(2); (v) a Non-U.S.
Person; and (vi) any other Person so designated by the Servicer based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause the Trust Fund to fail to qualify as a
two-tiered REMIC at any time that any Certificates are outstanding. For
purposes of the foregoing, the terms "United States," "State" and "Interna-
tional Organization" shall have the meanings set forth in Code Section 7701
or successor provisions. A "Non-U.S. Person" means an individual,
corporation, partnership or other person other than 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, an estate that is subject to U.S. federal income tax
regardless of the source of its income or, for trusts the taxable years of
which begin after December 31, 1996, a trust the administration of which is
subject to the primary supervision of a U.S. court and that has one or more
U.S. fiduciaries who have the authority to control all substantial decisions
of the trust.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision
thereof.
"Pool Factor" means, with respect to any Distribution Date and any Class
-----------
of Certificates, the percentage, carried out to seven decimal places,
obtained by dividing the Certificate Principal Balance of such Class of
Certificates, after giving effect to all distributions made on such
Distribution Date, by the Initial Certificate Principal Balance of such Class
of Certificates.
"Pool Balance" means, with respect to any Distribution Date, (i) the
------------
Cut-off Date Pool Balance less (ii) the aggregate of the Formula Principal
Distribution Amounts (without subtracting therefrom any Overcollateralization
Reduction Amount) for such Distribution Date and all prior Distribution
Dates.
"Pooling REMIC" shall have the meaning set forth in Section 10.12(a).
-------------
"Prepayment Interest Excess" means, as to any Principal Prepayment in
--------------------------
full received by the Servicer after a Contract's Due Date during any
Prepayment Period, all amounts paid by the related Obligor in respect of
interest during such Prepayment Period in excess of one month's interest at
the related APR on such Principal Prepayment.
"Prepayment Interest Shortfall" means, as to any Principal Prepayment
-----------------------------
in full received by the Servicer prior to a Contract's Due Date during any
Prepayment Period, the amount, if any, by which one month's interest at the
related APR on such Principal Prepayment exceeds the amount of interest paid
in connection with such Principal Prepayment.
"Prepayment Period" means, with respect to a Distribution Date, the
-----------------
calendar month immediately preceding the month in which such Distribution
Date occurs.
"Principal Distribution Tests" will be satisfied with respect to any
----------------------------
Distribution Date, if (i) the Average Sixty-Day Delinquency Ratio does not
exceed 5.00%, (ii) the Average Thirty-Day Delinquency Ratio does not exceed
7.00%, (iii) the Cumulative Realized Loss Test is satisfied and (iv) the
Current Realized Loss Ratio does not exceed 2.75%.
"Principal Prepayment" means, with respect to any Contract, a payment
--------------------
or other recovery of principal made on or in respect thereof (exclusive of
Liquidation Proceeds) that is received in advance of the related Due Date and
applied upon receipt (or, in some instances with respect to a partial
prepayment, upon one or more future Due Dates) to reduce the Contract
Principal Balance of such Contract prior to the Due Date or Due Dates on
which such principal amounts are due.
"Pro Forma Class A-1 Certificate Principal Balance" means, (i) as of (A)
-------------------------------------------------
the April 1998 Distribution Date, $6,459,585.51, (B) the May 1998
Distribution Date, $5,910,362.90, (C) the June 1998 Distribution Date,
$5,352,424.31, (D) the July 1998 Distribution Date, $4,785,863.54, (E) the
August 1998 Distribution Date, $4,210,776.00, (F) the September 1998
Distribution Date, $3,627,258.71, (G) the October 1998 Distribution Date,
$3,035,410.26, (H) the November 1998 Distribution Date, $2,435,330.76, (I)
the December 1998 Distribution Date, $1,827,121.87, (J) the January 1999
Distribution Date, $1,210,886.70, and (K) the February 1998 Distribution
Date, $586,729.85, and (ii) for any succeeding Distribution Date, zero.
"PTCE 95-60" means Department of Labor Prohibited Transaction Class
----------
Exemption 95-60.
"Qualified Bidders" means firms and institutions that are engaged in the
-----------------
business of buying and selling manufactured housing installment sales and
installment loan contracts.
"Rated Certificates" means each Class of Certificates that has been
------------------
rated by a Rating Agency.
"Rating Agencies" means Fitch and Moody's.
---------------
"Realized Losses" means, with respect to any Distribution Date, the
---------------
aggregate Net Liquidation Losses of all Contracts that became Liquidated
Contracts during the related Due Period.
"Record Date" means (i) with respect to any Distribution Date and the
-----------
Book-Entry Certificates, the close of business on the day immediately
preceding such Distribution Date, and (ii) with respect to any Distribution
Date and the Definitive Certificates (including the Class A-R, Class X and
Class B-2 Certificates), the close of business on the last Business Day of
the month immediately preceding the month in which such Distribution Date
occurs.
"REMIC" means a real estate mortgage investment conduit within the
-----
meaning of Section 860D(a) of the Code.
"REMIC Provisions" means provisions of the federal income tax law
----------------
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be
in effect from time to time.
"REO Property" means any Manufactured Home or Mortgaged Property
------------
acquired by the Servicer in a repossession or foreclosure.
"Repossession Profits" means, with respect 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 Due Period over the sum of
the Contract Principal Balance of such Contract plus accrued and unpaid
interest thereon at the related APR from the Due Date to which interest was
last paid by the Obligor to the Due Date in the Due Period in which such
Contract became a Liquidated Contract.
"Repurchase Price" means, with respect to any Repurchased Contract, an
----------------
amount equal to the unpaid principal balance of such Contract as of the
beginning of the month of repurchase plus accrued interest from the date
through which interest was last paid to its Due Date in the month in which
such Contract is repurchased.
"Repurchased Contract" means a Contract repurchased or required to be
--------------------
repurchased by the Seller pursuant to Section 3.05(a).
"Responsible Officer" means, when used with respect to the Trustee, (i)
-------------------
any officer within the Corporate Trust Office, including any vice president,
assistant vice president, secretary, assistant secretary, treasurer,
assistant treasurer, trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers who at the time shall be such officers,
respectively, or to whom a particular matter is referred because of such
officer's knowledge of and familiarity with the particular subject and (ii)
who shall have direct responsibility for the administration of this
Agreement.
"Sale and Purchase Agreement" means that certain sale and purchase
---------------------------
agreement, dated as of the date hereof, between the Seller and the Depositor,
regarding the sale by the Seller and purchase by the Depositor of the
Contracts.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Seller" means IndyMac, in its capacity as Seller under the Sale and
------
Purchase Agreement and this Agreement, and its successors.
"Servicer" means IndyMac, in its capacity as Servicer under the Sale and
--------
Purchase Agreement and this Agreement, or its successor in interest or any
successor under this Agreement as provided by Section 8.07.
"Servicer's Certificate" means an Officer's Certificate of the Servicer
----------------------
completed, executed and delivered pursuant to Section 7.02, substantially in
the form of Exhibit J.
"Servicing File" means 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 original title document or
application for title, the credit application, credit reports and
verifications, appraisals, tax and insurance records, payment records,
insurance claim records, correspondence and the Computer Tape.
"Servicing Officer" means any officer or employee 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" means, with respect to any Distribution
---------------------------
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate Contract Principal Balance of all Contracts that were delinquent 60
or more days as of the end of the preceding calendar month (including
Contracts in respect of which the related Manufactured Homes have been
repossessed but are still in inventory), and the denominator of which is the
Pool Balance for such Distribution Date.
"State" means any state of the United States or the District of
-----
Columbia.
"Step-Up APR" has the meaning set forth in Section 3.02(n).
-----------
"Step-Up Period" means, with respect to each Step-Up Contract, the
--------------
period commencing with the thirteenth month of such Contract and ending at
the maturity of the Contract.
"Step-Up Rate Contract" means a Contract that provides for a one-time
---------------------
increase in the applicable APR (and therefore an increase in each subsequent
Monthly Payment) at the commencement of the thirteenth month of such
Contract.
"Subordinate Certificates" means the Class M and Class B Certificates.
------------------------
"Subservicer" means any Person to whom the Servicer has delegated its
-----------
duties as Servicer pursuant to a Subservicing Agreement.
"Subservicing Agreement" means an agreement between the Servicer and any
----------------------
Subservicer, as contemplated by Section 5.03.
"Target Overcollateralization Amount" means (i) for any Distribution
-----------------------------------
Date prior to the Cross-over Date, 1.25% of the Cut-off Date Pool Balance and
(ii) for any other Distribution Date, the lesser of (a) 1.25% of the Cut-off
Date Pool Balance and (b) 2.25% of the then-outstanding Pool Balance;
provided, however, that so long as any Class of Certificates is outstanding,
the Target Overcollateralization Amount will not be less than 0.50% of the
Cut-off Date Pool Balance. Notwithstanding the foregoing, the Target
Overcollateralization Amount will mean, for any Distribution Date on which
the Class A-1 Certificate Principal Balance as of such Distribution Date
exceeds the Pro Forma Class A-1 Certificate Principal Balance as of such
Distribution Date, 4.79% of the Cut-off Date Pool Balance.
"Tax" means any tax, including interest, penalties, additional amounts
---
or additions to tax.
"Tax Matters Person" means 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, the Tax
Matters Person shall be the Trustee.
"Tax Matters Person Certificate" means the Class A-R Certificate with
------------------------------
a denomination equal to 0.001% of the Class A-R Certificate Principal
Balance.
"Termination Price" means the sum of (i) any Liquidation Expenses
-----------------
incurred by the Servicer in respect of any Contract that has not yet been
liquidated, (ii) all amounts required to be reimbursed or paid to the
Servicer in respect of previously unreimbursed Advances and (iii) the greater
of (a) the sum of (1) the aggregate Contract Principal Balance, plus accrued
and unpaid interest thereon at the related APRs through the end of the Due
Period immediately preceding the Due Period in which the terminating purchase
will occur, plus (2) the lesser of (A) the aggregate Contract Principal
Balance of each Contract that had been secured by any REO Property remaining
in the Trust Fund, plus accrued interest thereon at the related APR through
the end of the Due Period immediately preceding the Due Period in which the
terminating purchase will occur, and (B) the current Appraised Value of any
such REO Property (net of Liquidation Expenses to be incurred in connection
with the disposition of such property estimated in good faith by the
Servicer), such appraisal to be conducted by an appraiser mutually agreed
upon by the Servicer and the Trustee, plus all previously unreimbursed
Advances made in respect of such REO Property, and (b) the aggregate fair
market value of the Trust Fund (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 11.01) plus all previously unreimbursed Advances. The
fair market value of the assets of the Trust Fund as determined for purposes
of a terminating purchase will be deemed to include accrued interest at the
applicable APR on the Contract Principal Balance (including any Contract that
had been secured by a REO Property, which REO Property has not yet been
disposed of by the Servicer) through the end of the Due Period immediately
preceding the Due Period in which the terminating purchase will occur. The
basis for any such valuation shall be furnished by the Servicer to the
Certificateholders upon request.
"Thirty-Day Delinquency Ratio" means, with respect to any Distribution
----------------------------
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate Contract Principal Balance of all Contracts that were delinquent 30
or more days as of the end of the preceding calendar month (including
Contracts in respect of which the related Manufactured Homes have been
repossessed but are still in inventory), and the denominator of which is the
Pool Balance for such Distribution Date.
"Transfer" means any direct or indirect transfer or sale of any
--------
Ownership Interest in a Class A-R Certificate.
"Transfer Affidavit" means an affidavit of the Transferee of a Class A-R
------------------
Certificate, substantially in the form of Exhibit K.
"Transferee" means any Person who is acquiring by Transfer any Ownership
----------
Interest in a Class A-R Certificate.
"Trust Fund" means the corpus of the trust created by this Agreement,
----------
to the extent described herein, consisting of the Contracts (including,
without limitation, the security interest created thereby), including all
rights to receive payments received with respect to the Contracts on or after
the Cut-off Date, such assets as shall from time to time be identified as
deposited in the Collection Account and the Certificate Account, a Manufac-
tured Home and any related Mortgaged Property that secured a Contract (other
than a Repurchased Contract) and that have been acquired in realizing upon
such Contract, the Mortgages, the obligation of the Seller to repurchase
Repurchased Contracts pursuant to Section 3.05, the proceeds of the Hazard
Insurance Policies and all rights of the Depositor under the Sale and
Purchase Agreement.
"Trustee" means BNY, or its successors or assigns under this Agreement.
-------
"Trustee Fee Rate" means, with respect to each Contract, the per annum
----------------
rate agreed upon in writing on or prior to the Closing Date by the Trustee
and the Servicer.
"Trustee's Fees" means the fees, other than the Monthly Trustee Fee,
--------------
expenses and disbursements of the Trustee set forth in Section 10.05.
"UCC" means the Uniform Commercial Code as in effect in the relevant
---
jurisdiction or, in the case of Louisiana, the comparable provisions of
Louisiana law.
"Underwriters" means Credit Suisse First Boston Corporation and
------------
Donaldson, Lufkin & Jenrette Securities Corporation.
"United States" means the United States of America.
-------------
"Unpaid Certificate Principal Shortfall" means, with respect to a
--------------------------------------
Distribution Date, the Class A Unpaid Certificate Principal Shortfall in the
case of the Class A Certificates, the Class M Unpaid Certificate Principal
Shortfall in the case of the Class M Certificates, the Class B-1 Unpaid
Certificate Principal Shortfall in the case of the Class B-1 Certificates and
the Class B-2 Unpaid Certificate Principal Shortfall in the case of the Class
B-2 Certificates.
"Unpaid Liquidation Loss Interest Shortfall" means, with respect to a
------------------------------------------
Distribution Date, the Class M Unpaid Liquidation Loss Interest Shortfall
with respect to the Class M Certificates, the Class B-1 Unpaid Liquidation
Loss Interest Shortfall with respect to the Class B-1 Certificates and the
Class B-2 Unpaid Liquidation Loss Interest Shortfall with respect to the
Class B-2 Certificates.
"Value" means, with respect to each Contract, the sum of (i) either (a)
-----
the sum of the down payment (which includes the value of any trade-in unit),
the original amount financed on the related Contract (which may include sales
and other taxes) and insurance and prepaid finance charges or (b) the
Appraised Value of the related Manufactured Home and (ii) the Appraised Value
of the land, if any, securing the Contract.
"Vice President" of any Person means any vice president of such Person,
--------------
whether or not designated by a number or words before or after the title
"Vice President", who is a duly elected officer of such Person.
"Weighted Average Net Contract Rate" means, with respect to any
----------------------------------
Distribution Date, the per annum rate equal to (i) the weighted average of
the APRs borne by the Contracts and applicable to Monthly Payments due in the
related Due Period less (ii) the per annum rate used to calculate the Monthly
Servicing Fee.
ARTICLE TWO
CONVEYANCE OF CONTRACTS; CUSTODY OF CONTRACTS
Section 2.01. Conveyance of Contracts and Other Rights.
----------------------------------------
The Depositor, 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 its right, title and interest in, to and under
the Contracts (including, without limitation, the security interests created
thereby) and any related Mortgages, including all interest and principal
received with respect to the Contracts on or after the Cut-off Date, (ii) all
of the rights under any Hazard Insurance Policy relating to a Manufactured
Home securing a Contract for the benefit of the creditor of such Contract,
(iii) all documents contained in the Contract Files, (iv) all other of its
rights relating to and payments made with respect to other assets comprising
the Trust Fund and (v) all proceeds of the foregoing.
In the case of any Land Home Contract, not later than 180 days following
receipt by the Servicer of the original Mortgage with evidence of recording
by the appropriate public recording office indicated thereon, the Servicer
shall (i) affix the Trustee's name to each assignment of Mortgage, as the
assignee thereof, (ii) cause such assignment to be in proper form for
recording in the appropriate public office for real property records and
(iii) deliver or cause to be delivered for recording in the appropriate
public office for real property records the assignments of the Mortgages to
the Trustee, except that, with respect to any assignment of a Mortgage as to
which the Servicer has not received the information required to prepare such
assignment in recordable form, the Servicer's obligation to do so and to
deliver the same for such recording shall be as soon as practicable after
receipt of such information and in any event within 30 days after the receipt
thereof, and the Servicer need not cause to be recorded any assignment that
relates to a Land Home Contract (a) the Mortgaged Property and Contract File
relating to which are located in California or (b) in any other jurisdiction
under the laws of which, as evidenced by an Opinion of Counsel delivered by
the Seller (at the Seller's expense) to the Trustee, the recordation of such
assignment is not necessary to protect the Trustee's and the
Certificateholders' interest in the related Land Home Contract.
The ownership of each Contract and the contents of the related Contract
File and Servicing File are vested in the Trustee. The contents of each
Servicing File are and shall be held in trust by the Servicer for the benefit
of the Trustee as the owner thereof and the Servicer's possession of the
contents of each 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 the Depositor nor the
Servicer claim any ownership interest in the Contracts; provided, however,
that the Servicer shall retain the customer list and have the right to
solicit obligors for products it customarily makes available to obligors in
general.
It is the intention of the parties hereto that the conveyance of the
Depositor's right, title and interest in and to the Trust Fund pursuant to
this Agreement shall constitute a purchase and sale and not a loan. If the
conveyance of the Contracts from the Seller to the Depositor to the Trustee
is characterized as a pledge and not a sale, then the Depositor shall be
deemed to have transferred to the Trustee, in addition to the Trust Fund, all
of the Depositor's right, title and interest in, to and under the obligation
or obligation deemed to be secured by said pledge; and it is the intention of
the parties hereto that the Seller and the Depositor shall also be deemed to
have granted to the Trustee a first priority security interest in all of the
Seller's and the Depositor's right, title and interest in, to and under the
obligation or obligation deemed to be secured by said pledge and that the
Trustee shall be deemed to be an independent custodian for purposes of
perfection of such security interest.
If the conveyance of the Contracts from the Depositor to the Trustee is
characterized as a pledge, it is the intention of the parties hereto that
this Agreement shall constitute a security agreement under applicable law,
and that each of the Seller and the Depositor shall be deemed to have granted
to the Trustee a first priority security interest in all of its right, title
and interest in, to and under the Contracts, all payments of interest and
principal on or in respect of the Contracts received on or after the Cut-off
Date, all other rights relating to and payments made in respect of the Trust
Fund, and all proceeds thereof. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person as a Holder
or Certificate Owner of any Certificates, the security interest created
hereby shall continue in full force and effect and the Trustee shall be
deemed to be the collateral agent for the benefit of such Person.
Section 2.02. Filing; Name Change or Relocation.
---------------------------------
(a)(i) On or prior to the Closing Date, the Seller shall cause to be
filed, in the office of the Secretary of State of the State of California,
UCC-1 financing statements describing the Contracts and other items of the
Trust Fund as collateral and naming the Seller as debtor and the Depositor as
secured party. On or prior to the Closing Date, the Depositor shall cause to
be filed, in the office of the Secretary of State of the State of New York
and the County of New York, a UCC-1 financing statement describing the
Contracts and other items of the Trust Fund as collateral and naming the
Depositor as debtor and the Trustee as secured party. The Servicer shall
also cause to be filed all necessary continuation statements for each of the
foregoing UCC-1 financing statements.
(ii) Subject to the following sentence, 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 other items of the Trust Fund and their proceeds and the
Manufactured Homes and any related Mortgaged Property against all other
Persons, including, without limitation, the filing of financing statements
and continuation statements, the execution of transfer instruments and the
making of notations on or taking possession of all records or documents of
title. IndyMac, 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 (including, without
limitation, any UCC-3 assignments) relating to any Manufactured Home (other
than a notation or a transfer instrument necessary to show the Seller or an
Affiliate thereof as the lienholder or legal title holder) or, except as
provided in Section 2.01 with respect to Land Home Contracts, to file
documents in real property records with respect to a Manufactured Home
or related Contract or any related Mortgaged Property, absent notice from
the Trustee or the Depositor or actual knowledge that such Manufactured Home
(other than a Manufactured Home securing a Land Home Contract) has become
real property under applicable state law; provided this sentence shall not
have any effect on the representation and warranty in Section 3.02(j) and
the Seller's obligations in respect thereof in Section 3.05; provided,
further, that the Servicer shall not be required to protect the Trustee from
any Liens on the Contracts, their proceeds or the Manufactured Homes
created by the Depositor or conveyances of the Contracts or their
proceeds by the Depositor. Nothing in the preceding sentence shall
be construed to limit the indemnification obligations of the Servicer set
forth in Section 10.05. The Seller and the Depositor agree to take whatever
action is necessary to enable the Servicer to file financing statements and
continuation statements and otherwise act to perfect and protect the
Certificateholders' interests in the Contracts, the Manufactured Homes and
any related Mortgaged Property as set forth in this Agreement. Assuming that
the Depositor and the Trustee perform such actions as are required at the
direction of the Servicer, the Servicer will maintain a first priority
security interest in each Manufactured Home and any related Mortgaged
Property so long as the related Contract is the property of the Trust;
provided, however, that the Seller, 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, to execute any transfer instrument (including,
without limitation, any UCC-3 assignments) relating to any Manufactured Home
(other than a notation or a transfer instrument necessary to show the Seller
or an Affiliate thereof as lienholder or legal title holder) or to file
documents in real property records with respect to a Manufactured Home or
related Contract or any related Mortgaged Property, absent notice from the
Trustee, or the Depositor or actual knowledge that such Manufactured Home
(other than a Manufactured Home securing a Land Home Contract) has become
real property under applicable state law or to protect the Trustee from any
Liens created by the Depositor on any Manufactured Home.
(b) During the term of this Agreement, neither the Seller nor the
Depositor shall change its name, identity or structure or relocate its chief
executive office without first giving notice to the Trustee. If any change
in the Seller's or the Depositor'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, the Seller or the Depositor, as the case may be, 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.
(c) The Seller hereby represents and warrants that its current chief
executive offices are located in the State of California. The Depositor
hereby represents and warrants that its chief executive offices are in the
State of New York. During the term of this Agreement, the Seller and the
Depositor will each maintain its respective chief executive office in one of
the States of the United States, except Louisiana and Tennessee.
(d) The Servicer agrees to pay all reasonable costs and disbursements
in connection with the perfection and the maintenance of perfection, as
against all third parties, of the Certificateholders' right, title and
interest in, to and under the Contracts (including, without limitation, the
security interest in the Manufactured Homes granted thereby) and any related
Mortgages.
Section 2.03. Acceptance by Trustee. The Trustee hereby acknowledges
---------------------
conveyance of the Contracts and any related Mortgages to the Trustee and
declares that the Trustee, directly or through a custodian, holds and will
hold such Contract Files in trust for the use and benefit of all present and
future Certificateholders. The Trustee hereby certifies that it has no
notice or knowledge of (i) any adverse Lien 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.
Section 2.04. Conditions to Closing. On the Closing Date, the
---------------------
Depositor shall direct the Trustee to authenticate and deliver the
Certificates only upon receipt of letters from Fitch and Moody's confirming
that (i) the Class A-1 Certificates have been rated F-1+ and P-1,
respectively, (ii) the Class A-2, A-3, A-4, A-5 and A-R Certificates have
been rated AAA and Aaa, respectively, (iii) the Class M Certificates have
been rated at least AA and Aa3, respectively, and (iv) the Class B-1
Certificates have been rated at least BBB and Baa2, respectively.
Section 2.05. Contribution of Assets. Except as provided in Section
----------------------
3.05(a) as relates to a deposit in lieu of repurchase of a Contract the
principal balance of which is incorrectly set forth on the Contract Schedule,
following the Closing Date, the Trustee shall not accept any contribution of
additional assets to the Trust Fund unless the Depositor has delivered to the
Trustee an Opinion of Counsel to the effect that (i) the contribution of such
assets into the Trust Fund will not cause the Trust Fund to fail to qualify
as a two-tiered REMIC so long as any Certificate is outstanding and (ii) such
contribution will not cause the imposition of Tax on contributions to the
Trust Fund after the "start-up day" (as defined in Section 860G(a)(9) of the
Code) with respect thereto.
Section 2.06. Execution and Authentication of Certificates. The
--------------------------------------------
Trustee, on behalf of the Trust Fund, has caused to be executed,
authenticated and delivered to or upon the written order of the Depositor, in
exchange for the Trust Fund, concurrently with the transfer, sale,
assignment, setting over and conveyance to the Trustee of the Trust Fund,
Certificates in authorized denominations evidencing the ownership of the
entire Trust Fund.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the Seller. The
-----------------------------------------------
Seller makes the following representations and warranties to the other
parties hereto and the Certificateholders. Such representations and
warranties shall speak as of the execution and delivery of this Agreement,
but shall survive the sale, transfer and assignment of the Contracts to the
Trustee.
(a) Organization and Good Standing; Licensing. The Seller is a
-----------------------------------------
corporation duly organized, validly existing and in good standing under
the laws of the State of its incorporation and has the corporate power
to own its assets and to transact the business in which it is currently
engaged. The Seller is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or leased
by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on the condition, financial
or other, or the earnings or business affairs of the Seller. The Seller
was properly licensed in each jurisdiction at the time of its purchase
of each Contract in such jurisdiction to the extent required by the laws
of such jurisdiction as applied to the purchase of such Contract and the
failure to be so licensed would have a material adverse effect on the
enforceability of the related Contracts.
(b) Authorization; Binding Obligations. The Seller has the power
----------------------------------
and authority to make, execute and deliver this Agreement and perform
all of the transactions contemplated to be performed by it under this
Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the Seller enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and by the availability of equitable remedies.
(c) No Consent Required. The Seller is not required to obtain the
-------------------
consent of any other party or any consent, license, approval or authori-
zation 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 the failure to obtain will not have a material
adverse effect on the business operations, assets or financial
condition of the Seller.
(d) No Violations. The execution, delivery and performance of this
-------------
Agreement by the Seller will not violate any provision of any existing
law or regulation or any order or decree of any court applicable to the
Seller or the charter or bylaws of the Seller, or constitute a material
breach of any mortgage, indenture, contract or other agreement to which
the Seller is a party or by which the Seller may be bound, except for
such violations or breaches that, in the aggregate, will not have a
material adverse effect on the business, operations, assets or financial
condition of the Seller.
(e) Litigation. No litigation or administrative proceeding of or
----------
before any court, tribunal or governmental body is currently pending,
or to the knowledge of the Seller threatened, against the Seller or any
of its properties or with respect to this Agreement or the Certificates
that, if adversely determined, would in the opinion of the Seller have a
material adverse effect on the transactions contemplated by
this Agreement.
Section 3.02. Representations and Warranties as to Each Contract. The
--------------------------------------------------
Contracts have been sold by the Seller to the Depositor pursuant to the Sale
and Purchase Agreement. In connection with such sale, the Seller made the
representations and warranties contained in Sections 3.02 and 3.03 to the
Depositor. As a condition of the purchase by the Depositor, the Depositor
has required that the Seller make such representations and warranties
directly to the Trustee and the Certificateholders so that the Trustee may
recover directly against the Seller on such representations and warranties
rather than indirectly through claims by the Depositor against the Seller.
Consequently, the Seller represents and warrants to the other parties hereto
and the Certificateholders as to each Contract as of the Cut-off Date or the
Closing Date, as the case may be. Such representations and warranties shall
speak as of the execution and delivery of this Agreement (and as to the best
knowledge as of such date), but shall survive the sale, transfer and
assignment of the Contracts to the Trustee.
(a) Contract Schedule. As of the Cut-off Date, the information
-----------------
set forth in the Contract Schedule is true and correct in all material
respects with respect to each Contract.
(b) Payments. As of the Cut-off Date, no Monthly Payment is more
--------
than 30 days past due, and no portion of the Monthly Payment due in the
second month next preceding the month in which the Cut-off Date occurs
was made directly or indirectly by the Seller on behalf of the Obligor.
(c) No Waivers. The terms of the Contract and any related
----------
Mortgage have not been waived, altered or modified in any respect,
except by instruments or documents included in the Contract File.
(d) Binding Obligation. The Contract and any related Mortgage is
------------------
the legal, valid 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.
(e) Insurance. The Manufactured Home securing the Contract is
---------
covered by a Hazard Insurance Policy in the amount required by Section
5.08, except to the extent that such an insurance policy has been
cancelled and the Seller has not yet received notification thereof. All
premiums due as of the Closing Date on such insurance have been paid in
full or, with respect to insurance placed by the Servicer, will have
been paid in full within 90 days after the Closing Date.
(f) Origination. The Contract was either (i) originated by a
-----------
manufactured housing dealer acting, to the best of the Seller's
knowledge, in the regular course of its business and was purchased by
the Seller or an Affiliate thereof in the regular course of its
business, and if by an Affiliate, purchased by the Seller from such
Affiliate in the regular course of its business, (ii) originated by the
Seller or an Affiliate thereof in the regular course of its business,
and if by an Affiliate, purchased by the Seller from such Affiliate in
the regular course of its business, or (iii) originated by a third-party
originator and purchased by the Seller or an Affiliate thereof, and
if by an Affiliate, purchased by the Seller from such Affiliate in the
regular course of its business.
(g) Lawful Assignment. The Contract and any related Mortgage was
-----------------
not originated in and is not subject to the laws of any jurisdiction the
laws of which would make the transfer of the Contract from the Seller
to the Depositor or the transfer or ownership of the Contract under
this Agreement or pursuant to transfers of Certificates unlawful, void
or voidable or render the Contract unenforceable in any respect.
(h) Compliance with Law. All requirements of any federal, state
-------------------
or local law, including, without limitation, usury, truth-in-lending and
equal credit opportunity laws and lender licensing laws, applicable to
the Contract and any related Mortgage or the servicing of any Contract
have been complied with to the extent any of the foregoing would have
a material adverse effect on the enforceability of the related Contract.
(i) Contract in Force. The Contract and any related Mortgage 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 and any related Mortgage in whole or in part.
(j) Valid Security Interest. The Contract, together with any
-----------------------
related Mortgage, creates a valid, subsisting and enforceable first
priority security interest in favor of the Seller or an Affiliate
thereof in the Manufactured Home covered thereby and, in the case of a
Land Home Contract, a first mortgage lien on the related Mortgaged
Property, subject to (i) the lien of current real property taxes and
assessments, (ii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
of such Mortgage, such exceptions appearing of record being acceptable
to mortgage lending institutions generally in the area wherein the
property subject to the Mortgage is located or specifically reflected in
the appraisal obtained in connection with the origination of the related
Land Home Contract obtained by the Seller and (iii) other matters to
which like properties are commonly subject that do not materially
interfere with the benefits of the security intended to be provided by
such Mortgage; such security interest or Mortgage has been assigned by
the Seller to the Depositor and, assuming the due authorization,
execution and delivery by the Depositor of this Agreement, the Sale and
Purchase Agreement and such other instruments relating to the transfer
of the Contract to the Trustee as the Seller has presented to the
Depositor for execution and delivery, by the Depositor to the Trustee,
and, assuming the Depositor has neither conveyed an interest in the
Contract or related Mortgaged Property except pursuant to this Agreement
nor created any Lien on the Contract, their proceeds or any Manufactured
Home or related Mortgaged Property except as contemplated by this
Agreement, the Trustee has a valid and perfected first priority security
interest in such Manufactured Home and, in the case of a Land Home
Contract, a first mortgage lien on the related Mortgaged Property.
(k) Good Title. Each of the Seller and any Affiliate thereof from
----------
whom the Seller directly or indirectly acquired the Contract purchased
such Contract and any related Mortgage for value and took possession
thereof in the ordinary course of its business, without knowledge that
the Contract was subject to any security interest. Immediately prior to
the transfer of the Contract and any related Mortgage by the Seller to
the Depositor, the Seller had good and marketable title thereto free and
clear of any Lien (other than any Liens created by any financing
arrangements in respect of the Contracts, which Liens will be released
concurrently with the issuance of the Certificates) and was the sole
owner thereof with full right to transfer the Contract and any related
Mortgage to the Depositor. Except as otherwise provided in the
parenthetical in the preceding sentence, the Seller has not sold,
assigned or pledged the Contract or any related Mortgage to any Person
other than the Depositor and prior to the transfer of the Contract and
any related Mortgage by the Seller to the Depositor and by the
Depositor to the Trust, the Seller had good and marketable title thereto
free and clear of any Lien, was the sole owner thereof with full right
to transfer the Contract to the Depositor and has transferred all right,
title and interest in, to and under the Contract to the Depositor,
free and clear of any Lien.
(l) No Defaults. To the best of the Seller's knowledge, as of the
-----------
Cut-off Date there was no default, breach, violation or event permitting
acceleration existing under the Contract and any related Mortgage and no
event that, 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 (b) above). The Seller has not waived
any such default, breach, violation or event permitting acceleration,
except by instruments or documents included in the Contract File.
(m) No Liens. As of the Closing Date, there are, to the best of
--------
the Seller's knowledge, no Liens that have been filed for work, labor or
materials affecting the Manufactured Home securing the Contract that are
or may be liens prior to, or equal or coordinate with, the lien of the
Contract.
(n) Equal Installments. Each Contract that is not a Step-Up Rate
------------------
Contract is computed according to the "actuarial" method. Each Contract
has a fixed APR and provides for level monthly payments of principal and
interest (except that the payment at maturity may be slightly larger)
that fully amortize the loan over its term. Each Step-Up Rate
Contract has an initial fixed APR (the "Initial APR") and level monthly
payments of principal and interest during its Initial Period, and a
subsequent fixed APR that is 2.01% above the Initial APR (the "Step-Up
APR"), and correspondingly increased level monthly payments of principal
and interest, during the Step-Up Period. The total amount and the
principal portion of the Monthly Payment with respect to any Step-Up
Rate Contract during its Initial Period or Step-Up Period, as
applicable, is determined on a basis that would cause such Contract
to be fully amortized over its remaining term (at the commencement of
such period) on a level payment basis based on the Initial APR or the
Step-Up APR, as applicable.
(o) Enforceability. The Contract and any related Mortgage
--------------
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.
(p) One Original. There is only one original executed Contract,
------------
which is in the custody of the Trustee on the Closing Date.
(q) Loan-to-Value Ratio. At the time of its origination, the
-------------------
Contract had a Loan-to-Value Ratio (rounded to the nearest 1%) not
greater than 100%.
(r) Not Real Estate. The related Manufactured Home (other than
---------------
a Manufactured Home that secures a Land Home Contract) is personal
property, was personal property at the time of the execution and
delivery of the related Contract by the parties thereto, and is not and
was not, at such time, 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. The related Manufactured Home is, to the best of
the Seller's knowledge, free of damage and in good repair.
(s) 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 show, the Seller or an Affiliate thereof
as the holder of a first priority security interest in such
Manufactured Home. If the related Manufactured Home is located in a
state in which the filing of a financing statement or the making of
a fixture filing under the UCC is required to perfect a security
interest in manufactured housing, such filings or recordings have
been duly made and show the Seller or an Affiliate thereof as secured
party. If the related Manufactured Home secures a Land Home Contract
and is located in a state that does not permit separate evidence of
Liens on the Manufactured Home and the property on which it is
located, such Manufactured Home and, in the case of all Land Home
Contracts, the related land securing such Land Home Contract or the
Manufactured Home, as the case may be, are subject to a Mortgage
properly filed in the appropriate public recording office and naming
IndyMac or an Affiliate thereof as mortgagee. In either case,
assuming the due authorization, execution and delivery by the Depositor
of this Agreement, the Sale and Purchase Agreement and such other
instruments relating to the transfer of the Contracts to the Trustee as
the Seller has presented to the Depositor for execution and delivery, 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.
(t) Qualified Mortgage for REMIC. Each Contract is secured by a
----------------------------
"single family residence" within the meaning of Section 25(e)(10) of the
Code.
Section 3.03. Representations and Warranties as to the Contracts. The
--------------------------------------------------
Seller represents and warrants to the other parties hereto and the
Certificateholders as follows. Such representations and warranties shall
speak as of the execution and delivery of this Agreement, but shall survive
the sale, transfer and assignment of the Contracts to the Trustee.
(a) Amounts. The aggregate principal amounts payable by Obligors
-------
under the Contracts as of the Cut-off Date equals or exceeds the
Cut-off Date Pool Balance, and each Contract has an APR as of the
Cut-off Date equal to or greater than 7.00%.
(b) Characteristics. The Contracts have the following
---------------
characteristics as of the Cut-off Date: (i) based on Cut-off Date
Pool Balance, not more than (A) 15.56% of the Contracts are
secured by Manufactured Homes located in any one state and (B) 33.16%
of the Contracts are Land Home Contracts; (ii) no Contract has a
remaining term to maturity of less than 18 months or more than 360
months; (iii) the final scheduled payment date on the Contract with
the latest maturity is in February 2028; (iv) based on Cut-off Date
Pool Balance, 63.07% of the Contracts relate to purchases of new
Manufactured Homes and 36.93% of the Contracts relate to the financing
of used Manufactured Homes; (v) a total of 22 of the Contracts,
representing 0.79% of the Cut-off Date Pool Balance, are Step-Up
Rate Contracts; and (vi) no Contract was originated before April 1, 1996.
(c) Computer Tape. The Computer Tape made available to the
-------------
Depositor as of the close of business on March 1, 1998 was accurate as of
its date and includes a description of the same Contracts that are
described in the Contract Schedule.
(d) Marking Records. Within one month after the Closing Date, the
---------------
Seller will have caused the portions of the Electronic Ledger relating to
the Contracts constituting part of the Trust Fund 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 for the effect of the repre
--------------------
sentations and warranties made in Sections 3.02 and 3.03 and the effect
of the geographical distribution of the Manufactured Homes, no adverse
selection procedures have been employed in selecting the Contracts.
Section 3.04. Representations and Warranties as to the Contract Files.
-------------------------------------------------------
The Seller represents and warrants to the other parties hereto and the
Certificateholders as follows. Such representations and warranties shall
speak as of the execution and delivery of this Agreement, but shall survive
the sale, transfer and assignment of the Contracts to the Trustee.
(a) Possession. Immediately prior to the Closing Date, the
----------
Servicer will have possession of each original Contract and the Servicer
will have possession of the remainder of the related Contract File
(except for any certificate of title that has not yet been returned
from the appropriate public recording office).
(b) Bulk Transfer Laws. The transfer, assignment and conveyance
------------------
of the Contracts and the Contract Files by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction.
Section 3.05. Repurchase of Contracts for Breach.
----------------------------------
(a) The Seller shall repurchase a Contract (each, a "Repurchased
Contract"), at its Repurchase Price, not later than one Business Day after
the first Determination Date that is more than 90 days after the Seller
becomes aware, or receives written notice from the Servicer or the Trustee,
of a breach of a representation or warranty of the Seller set forth in
Section 3.02 or 3.03 that materially adversely affects the Trust Fund's
interest in such Contract, unless such breach has been cured.
Notwithstanding the foregoing, with respect to (i) any Contract incorrectly
described on the Contract Schedule with respect to Contract Principal
Balance, the Seller may, in lieu of repurchasing such Contract, deposit
in the Collection Account not later than one Business Day after such
Determination Date cash in an amount sufficient to cure such deficiency or
discrepancy and (ii) a breach of a representation or warranty relating to the
Contracts in the aggregate and not to each particular Contract, the Seller
may select Contracts to repurchase that, had such Contracts not been included
as part of the Contract Pool, there would have been no breach of such
representation or warranty. It is understood and agreed that the obligation
of the Seller to repurchase any Contract as to which a breach of a
representation or warranty set forth in Section 3.02 or 3.03 has occurred and
is continuing shall constitute the sole remedy respecting such breach
available to the Certificateholders, the Depositor or the Trustee; provided,
however, that the Seller shall defend and indemnify the Trustee, the Trust
Fund and Certificateholders against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel,
that may be asserted against or suffered by any of them as a result of
third-party claims arising out of any breach of a representation or warranty
set forth in Section 3.02. Nothing in the preceding sentence shall be
construed to limit the indemnification obligations of the Servicer set forth
in Section 10.05. Notwithstanding any other provision of this Agreement, the
obligation of the Seller under this Section shall not terminate upon an Event
of Default.
Notwithstanding the foregoing provisions of this Section, the Seller
shall not be required to repurchase any Contract on account of a breach of
the representation or warranty contained in Section 3.02(j) or (s) solely on
the basis of failure by the Seller to cause notations to be made on any docu-
ment 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 Seller or an Affiliate thereof as
lienholder or legal title holder) or to record an assignment of a Mortgage
unless a court of competent jurisdiction has adjudged that, because of such
failure, the Trustee does not have a perfected first-priority security
interest in the related Manufactured Home.
Notwithstanding the foregoing, the Seller shall not deposit cash into
the Collection Account or the Certificate Account pursuant to this Section
after the end of 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 860F(a)(1) of the Code or
Section 860G(d) of the Code. Any such deposit shall not be invested. If the
Seller is required to purchase a Contract (or deposit cash in the Collection
Account or the Certificate Account), the Seller shall guarantee the payment
of any Tax under Section 860F(a)(1) of the Code or under Section 860G(d) of
the Code by paying to the Trustee the amount of such Tax not later than five
Business Days before such Tax shall be due and payable to the extent that
amounts previously paid over to and then held by the Trustee pursuant to
Section 10.12 are insufficient to pay such Tax and all other Taxes chargeable
under Section 10.12. The Trustee shall hold any amount paid to it pursuant
to the preceding sentence in an account that is not part of the Trust Fund.
The Servicer shall give notice to the Trustee at the time of such repurchase
of the amounts due from the Seller pursuant to such guarantee of Taxes of
the Seller and notice as to who should receive such payment.
In the event any Tax that is guaranteed by the Seller is refunded to the
Trust Fund or otherwise is determined not to be payable, the Seller shall be
repaid the amount of such refund or that portion of any guarantee payment
made by the Seller that is not applied to the payment of such Tax.
(b) Promptly after the repurchase referred to in Section 3.05(a), the
Trustee shall execute such documents as are presented to it by the Seller and
are reasonably necessary to reconvey the Repurchased Contract to the Seller.
Any amount received on or recovered with respect to Repurchased Contracts
during or after the month of repurchase shall be the property of the Seller
and need not be deposited in the Collection Account or the Certificate
Account.
Section 3.06. Representation and Warranty as to the Depositor. The
-----------------------------------------------
Depositor represents and warrants to the other parties hereto and the
Certificateholders that, immediately prior to the transfer, sale, assignment
and conveyance of the Contracts to the Trustee and assuming that the
representation and warranty in Section 3.02(m) is correct, the Depositor had
good title to, and was the sole owner of, each Contract and any related
Mortgage free of any Liens created by the Depositor, there had been no other
sale or assignment thereof by the Depositor and the Depositor has transferred
to the Trustee a security interest (as defined in the UCC in effect in the
State of New York) in the Contracts and any related Mortgages, which security
interest is a perfected, first priority security interest.
ARTICLE FOUR
THE CERTIFICATES
Section 4.01. The Certificates. Each Class of Certificates shall be
----------------
substantially in the related forms annexed hereto as Exhibits, with such
immaterial changes as the Depositor deems appropriate, and (other than the
Class A-R, Class B-2 and Class X Certificates) shall be issued in minimum
denominations of $1,000.00 and integral multiples of $1.00 in excess thereof.
The Class A-R Certificates shall be issued as fully registered physical
certificates including one certificate representing the Tax Matters Person
Certificate. The Class B-2 Certificates and the Class X Certificates shall
be issued as fully registered physical certificates. The Class X
Certificates will not have any principal balance.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trust Fund by a Responsible Officer of the Trustee. The
Certificates shall be authenticated by manual signature on behalf of the
Trustee by a Responsible Officer or an Authenticating Agent at the written
order of the Depositor. Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Trustee shall bind the Trust Fund, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a manual authentication by the Trustee or its Authenticating
Agent and such 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.
Section 4.02. Registration of Transfer and Exchange of Certificates.
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(a) The Trustee shall cause to be kept at its Corporate Trust Office
or, at the election of the Trustee, at the office of its designated agent in
New York City, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfer and exchanges of Certificates as
herein provided. The Trustee initially appoints itself as the Certificate
Registrar.
(b) Subject to Sections 4.02(c) and 11.01(b), upon surrender for
registration of transfer of any Certificate at any office or agency of the
Trustee maintained for such purpose, the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, a
Certificate of a like aggregate Percentage Interest and dated the date of
authentication by the Trustee. The Holder and beneficial owner of any
Subordinate Certificate will be deemed to represent that it is not a Benefit
Plan or a trustee of any such Benefit Plan or a person acting on behalf of
any such plan or acquiring a Subordinate Certificate with the assets of any
such Benefit Plan unless it delivers to the Trustee, the Depositor and the
Servicer (i) an Opinion of Counsel satisfactory to the Trustee, the
Depositor and the Servicer, to the effect that the purchase or holding
of such Subordinate Certificate 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 and the Code and will
not subject the Trustee, the Depositor or the Servicer to any
obligation in addition to those undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of the Trustee, the Depositor
or the Servicer, or (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company that is
purchasing such Subordinate Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e)
of PTCE 95-60) and that the purchase and holding of such Subordinate
Certificates are covered under Sections I and III of PTCE 95-60.
(c) No transfer of a Class B-2 or Class X Certificate shall be made
unless such transfer is made pursuant to an effective registration statement
or in accordance with an exemption from the requirements under the Securities
Act or any applicable state securities laws. If such a transfer is to be
made in reliance upon an exemption from the Securities Act and such state
securities laws, prior to the registration of any such transfer (i) the
Trustee, the Depositor or the Servicer may (except in the case of a transfer
to the Servicer or any Affiliate thereof) require (A) an Opinion of Counsel
as to the Securities Act and a memorandum of law as to state securities laws,
in each case acceptable to and in form and substance satisfactory to the
Trustee, the Depositor and the Servicer that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the Securities Act and such state securities laws or is being
made pursuant to the Securities Act and such state securities laws, which
Opinion of Counsel and memorandum of law shall not be an expense of the
Trustee, the Depositor or the Servicer, or (B) an Investment Letter
substantially in the form of Exhibit L.
No transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received (i) (A) a representation from the proposed Transferee to
the effect that such transferee is not a Benefit Plan or a trustee of any
such Benefit Plan or a person acting on behalf of any such Benefit Plan or
acquiring such Certificate with the assets of any such Benefit Plan, (B) an
Opinion of Counsel satisfactory to the Trustee, the Depositor and the
Servicer, to the effect of the Opinion of Counsel required by Section
4.02(b)(i), which Opinion of Counsel shall not be an expense of the Trustee,
the Depositor or the Servicer, or (C) if the purchaser is an insurance
company, a representation that the purchaser is an insurance company that is
purchasing such Subordinate Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e)
of PTCE 95-60) and that the purchase of and holding of such Subordinate
Certificates is covered under Sections I and III of PTCE 95-60 and (ii) the
Trustee shall require the Transferee to execute a Transfer Affidavit.
(d) At the option of the Certificateholder, a Certificate may be
exchanged for another Certificate or Certificates of the same Class and of
authorized denominations of the same aggregate denomination, upon
surrender of the Certificate to be exchanged at any office or agency of
the Trustee maintained for such purpose. Whenever the Certificate is so
surrendered for exchange, the Trustee shall execute and the Trustee or
its Authenticating Agent shall authenticate and deliver, the Certificate
or Certificates that the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
transfer or exchange shall be duly endorsed by, or be accompanied by
a written instrument of transfer in the form attached to the Certificate
duly executed by, the Holder thereof or his attorney duly authorized
in writing.
(e) No service charge shall be made to the Holder for any transfer or
exchange of the Certificate, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Certificate.
(f) All Certificates surrendered for transfer and exchange shall be
held in accordance with the retention policy of the Trustee.
Section 4.03. Book-Entry Certificates.
-----------------------
(a) Except as provided in Section 4.03(b), the Certificates of each
Class (other than the Class B-2, Class A-R and Class X Certificates) will be
evidenced by Book-Entry Certificates that shall at all times remain
registered in the name of the Depository or its nominee and at all times:
(i) registration of the Class A (other than the Class A-R Certificates),
Class M and Class B-1 Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and transfers of such Class A (other than the Class A-R Certificates), Class
M and Class B-1 Certificates; (iii) ownership and transfers of registration
of the Class A (other than the Class A-R Certificates), Class M and Class B-1
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its
usual and customary fees, charges and expenses from its Depository
Participants; (v) the Trustee shall deal with the Depository as
representative of the Certificate Owners of the Class A (other than the
Class A-R Certificates), Class M and Class B-1 Certificates for purposes of
exercising the rights of Holders under this Agreement, and requests and
directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners;
and (vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it
acts as agent in accordance with the Depository's normal procedures.
(b) If (i) the Depositor or the Depository advises the Trustee in
writing that the Depository is no longer willing, qualified or able to
properly discharge its responsibilities as Depository and the Depositor is
unable to locate a qualified successor, (ii) the Depositor at its option may
advise the Trustee in writing that it elects to terminate the book-entry
system through the Depository or (iii) after the occurrence of an Event of
Default, Certificate Owners representing Percentage Interests aggregating not
less than 51% of the Percentage Interests of the Book-Entry Certificates,
voting as a single Class, advise the Trustee and the Depository through the
Depository Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the
Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability
of definitive, fully registered Certificates (the "Definitive Certificates")
to Certificate Owners requesting the same. Upon surrender to the Trustee of
the Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall issue
the Definitive Certificates. Neither the Depositor nor the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates, all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(c) On or prior to the Closing Date, there shall be delivered to the
Depository one Class A-1 Certificate, one Class A-2 Certificate, one Class
A-3 Certificate, one Class A-4 Certificate, one Class A-5 Certificate, one
Class M Certificate and one Class B-1 Certificate, each in registered form
registered in the name of the Depository's nominee, Cede & Co., the total
face amount of which represents 100% of the Class A-1 Initial Certificate
Principal Balance, the Class A-2 Initial Certificate Principal Balance, the
Class A-3 Initial Certificate Principal Balance, the Class A-4 Initial
Certificate Principal Balance, the Class A-5 Initial Certificate Principal
Balance, the Class M Initial Certificate Principal Balance and the Class B-1
Initial Certificate Principal Balance, respectively, in each case rounded
down to the nearest $1. Each Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class M or Class B-1 Certificate so registered shall bear the
following legend:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN."
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates. If
-------------------------------------------------
(i) 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 (ii) there is delivered to the Trustee and the
Certificate Registrar such security or indemnity as may be required by it 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 authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the
same Class and of like tenor and denomination. Upon the issuance of any new
Certificate under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the destroyed, lost or stolen Certificate
shall be found at any time.
Section 4.05. Persons Deemed Owners. The Depositor, the Servicer, the
---------------------
Trustee, the Certificate Registrar and any Paying Agent may treat the person
in whose name any Certificate is registered as the owner of such Certificate
for the purpose of receiving payments pursuant to Section 6.01 and for all
other purposes whatsoever, and none of the foregoing entities shall be
affected by notice to the contrary.
Section 4.06. Appointment of Paying Agent. The Trustee may appoint a
---------------------------
Paying Agent for the purpose of making distributions to Certificateholders
pursuant to Section 6.01 and payments pursuant to Section 10.12. Any Paying
Agent so appointed either shall be a bank or trust company or 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
6.01, such sum to be held in trust for the benefit of Certificateholders.
The Trustee initially appoints itself as Paying Agent.
The Trustee shall cause each Paying Agent other than the Trustee 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 in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders.
Section 4.07. Access to List of Certificateholder Names and Addresses.
-------------------------------------------------------
The Certificate Registrar will furnish to the Trustee (if the Trustee is not
the Certificate Registrar), the Depositor and the Servicer within five days
after receipt by the Certificate Registrar of a request therefor from the
Trustee, the Depositor or the Servicer in writing, a list, in such form as
the Trustee, the Depositor or the Servicer reasonably may require of the
names and addresses of the Certificateholders as of the most recent Record
Date. If Holders of Certificates of any Class evidencing, as to such Class,
aggregate Percentage Interests of 25% or more (the "Applicants") apply in
writing to the Trustee, and such application states that the Applicants
desire to communicate with other Certificateholders of such Class with
respect to their rights under this Agreement or under the Certificates of
such Class and is accompanied by a copy of the communication that such
Applicants proposed to transmit, then the Trustee, within five Business Days
after the receipt of such application, shall afford such Applicants access
during normal business hours to the most recent list of Certificateholders of
such Class held by the Trustee. If such list is as of a date more than 90
days prior to the date of receipt of such Applicants' request, the Trustee
promptly shall request from the Certificate Registrar a current list as
provided above, and shall afford such Applicants access to such list promptly
upon receipt. Every Certificateholder, by receiving and holding a
Certificate, agrees with the Certificate Registrar and the Trustee that
neither the Servicer, the Certificate Registrar, the Depositor nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 4.08. Authenticating Agents. The Trustee may appoint one or
---------------------
more Authenticating Agents (the "Authenticating Agents") with power to act on
its behalf and subject to its direction in the execution and delivery of the
Certificates. For all purposes of this Agreement, the execution and delivery
of Certificates by the Authenticating Agent pursuant to this Section shall be
deemed to be the execution and delivery of Certificates "by the Trustee."
Section 4.09. The Class A-R Certificates.
--------------------------
(a) The Class A-R Certificates may not be assigned or transferred
except in accordance with Sections 4.02, 4.09 and any other applicable
provision of this Agreement. The Holders of the Class A-R Certificates, by
purchasing such Class A-R Certificates, for purposes of Section 10.12 (i)
shall be deemed to consent to the appointment of the Trustee as (A) the tax
matters person for the Trust Fund and (B) the attorney-in-fact and agent for
any person that is the tax matters person if the Trustee is unable to serve
as the tax matters person and (ii) agrees to execute any documents required
to give effect to the provisions of clause (i) above.
(b) Each Person who has or acquires any Ownership Interest in a Class
A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to execute all instruments of transfer and to do all other things necessary
in connection with any such sale, and the rights of each Person acquiring any
Ownership Interest in a Class A-R Certificate are expressly subject to
the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class A-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) In connection with any proposed Transfer of any Ownership
Interest in a Class A-R Certificate, the proposed Transferee shall
deliver to the Trustee, the following:
(A) a Transfer Affidavit; and
(B) an agreement by the proposed Transferee to be bound by
and to abide by the provisions of this Section.
(iii) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (ii) above, if a Responsible Officer
has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of any Ownership Interest in a Class A-R
Certificate to such proposed Transferee shall be effected.
(iv) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to require a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer any
Ownership Interest in such Class A-R Certificate and (B) not to Transfer
any Ownership Interest in such Class A-R Certificate or to cause the
Transfer of any Ownership Interest in such Class A-R Certificate to any
other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(v) Any attempted or purported Transfer of any Ownership Interest
in a Class A-R Certificate in violation of the provisions of this
Section shall be absolutely null and void and shall vest no rights in
the purported Transferee. If any purported Transferee shall become the
holder of an Ownership Interest in a Class A-R Certificate in violation
of the provisions of this Section, then, upon discovery by a Responsible
Officer of, or due notification to the Trustee that the recognition of
the Transfer of such Ownership Interest in such Class A-R Certificate
was not in fact permitted by this Section, the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof retroactive
to the date of Transfer of such Ownership Interest in such Class A-R
Certificate. The Trustee shall be entitled but not obligated to recover
from any Holder of a Class A-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 A-R Certificate at and after 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 Class
A-R Certificate.
Upon notice to the Trustee that any legal or beneficial interest in any
portion of a Class A-R Certificate has been transferred, either directly or
indirectly, to any Person that is not a Permitted Transferee or an agent
thereof (including a broker, nominee or middleman) in contravention of the
foregoing restrictions, or that is a pass-through entity, as defined in
Section 860E(e)(6) of the Code, an interest in which is held of record by a
Person that is not a "Permitted Transferee", the Trustee shall furnish to the
Internal Revenue Service and those Persons specified in Section 860E(c)(3)
and (b) of the Code such information necessary to the application of Section
860E(e) of the Code as may be required by the Code, including but not limited
to, the present value of the total anticipated excess inclusions with respect
to such Class A-R Certificate (or portion thereof) for periods after such
Transfer and the total excess inclusions for any taxable year allocable to
any holder of an interest in such pass-through entity that is not a Permitted
Transferee. The Trustee may charge the Servicer a reasonable fee for
computing and furnishing such information to the transferor or to such agent
or to such pass-through entity referred to above; however, the Trustee shall
in no event be excused from furnishing such information to the Internal
Revenue Service. The foregoing restrictions on transfer contained in this
Section shall cease to apply to Transfers occurring on or after the date on
which there shall have been delivered to the Trustee, the Depositor and the
Servicer, in form and substance satisfactory to the Trustee, an Opinion of
Counsel that eliminating such restrictions will not cause the Trust Fund to
fail to qualify as a two-tiered REMIC at any time while the Certificates are
outstanding.
(c) Each Holder of Class A-R Certificates, by purchasing such Class A-R
Certificates, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon becoming the Holder
of a Class A-R Certificate, if it is, or is holding such Class A-R
Certificates on behalf of, a "pass-through interest holder".
(d) No Class A-R Certificate shall be registered in the name of the
Depositor or any Person known to a Responsible Officer to be an Affiliate
thereof, and no Subordinate Certificate shall be registered in the name of
the Depositor or any such Affiliate, unless the Trustee shall first have
received written notification from each Rating Agency that such Transfer will
not cause a reduction or withdrawal of the rating then assigned to any of the
Rated Certificates.
ARTICLE FIVE
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 5.01. Responsibility for Contract Administration and Servicing.
--------------------------------------------------------
The Servicer shall service and administer the Contracts in accordance with
and subject to the terms of this Agreement, shall have full power and
authority to do any and all things that it may deem necessary or desirable in
connection with such servicing and administration; provided, however, that
if, as a result of extending of payments (including any increase in the
number of payments) in the ordinary course of the Servicer's collection
procedures, any Contract will be outstanding on the Final Scheduled
Distribution Date relating to Certificates other than the Class A-1
Certificates, then the Servicer shall repurchase such Contract pursuant to
Section 3.05. The relationship of the Servicer (and of any successor
Servicer other than the Trustee) to the Trustee under this Agreement is
intended by the parties to be that of independent contractor and not that of
a joint venturer, partner or agent of the Trustee.
Section 5.02. Standard of Care. In managing, administering, servicing
----------------
and making collections on the Contracts pursuant to this Agreement, the
Servicer will exercise the same degree of skill and care, consistent with the
terms of this Agreement, that the Servicer exercises in managing, servicing,
administering and collecting on similar manufactured housing installment
sales contracts and installment loan agreements owned and/or serviced by the
Servicer; provided, however, that nothing herein shall require the Servicer
to violate any applicable federal, state or local common or statutory law,
regulation or rule. Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered by the Trustee when the Servicer
believes it appropriate in its best judgment, to execute and deliver, on
behalf of the Certificateholders and the Trustee 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 any related Mortgages and with respect to the Manufactured Homes and any
related Mortgaged Properties. The Trustee shall execute any powers of
attorney and other documents prepared and delivered to the Trustee by the
Servicer that are necessary or appropriate, in the judgement of the Servicer,
to enable the Servicer to service and administer the Contracts. For purposes
of this Agreement, the Trustee shall be deemed to have given to the Servicer
a power of attorney for purposes of servicing the Contracts.
Section 5.03. Subservicing.
------------
(a) The Servicer may enter into Subservicing Agreements with one or
more Subservicers for the servicing and administration of certain of the
Contracts. References herein to actions taken or to be taken by the Servicer
in servicing the Contracts include actions taken or to be taken by a
Subservicer on behalf of the Servicer. Each Subservicing Agreement will be
upon such terms and conditions as are not inconsistent with this Agreement
and as the Servicer and the Subservicer have agreed. With the approval of
the Servicer, a Subservicer may delegate its servicing obligations to
third-party servicers, but such Subservicer will remain obligated under
the related Subservicing Agreement. The Servicer and a Subservicer
may enter into amendments thereto or different forms of Subservicing
Agreements; provided, however, that any such amendments or different forms
shall be consistent with and not violate the provisions of this Agreement
or materially adversely affect the rights of Certificateholders hereunder.
(b) The Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this
Agreement; provided, however, that in the event of termination of any
Subservicing Agreement by the Servicer or the related Subservicer, the
Servicer shall either act directly as Servicer of the related Contract or
enter into a Subservicing Agreement with a successor Subservicer, which will
be bound by the terms of the related Subservicing Agreement.
(c) Notwithstanding any Subservicing Agreement, any of the provisions
of this Agreement relating to agreements or arrangements between the Servicer
or a Subservicer or reference to actions taken through such Persons or
otherwise, the Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the servicing and administering of the Contracts
in accordance with the provisions of this Agreement without diminution of
such obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from a Subservicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Contracts. The Servicer shall be
entitled to enter into an agreement with a Subservicer for indemnification of
the Servicer and nothing contained in this Agreement shall be deemed to limit
or modify such indemnification.
(d) Any Subservicing Agreement that may be entered into and any other
transactions or servicing arrangements relating to the Contracts involving a
Subservicer shall be deemed to be between the Subservicer and the Servicer
alone, and neither the Trustee nor the Certificateholders shall be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in the
immediately succeeding paragraph.
(e) In the event the Servicer shall for any reason no longer be a
servicer (including, but not limited to, by reason of an Event of Default),
the Trustee or its designee may, at the sole discretion of the Trustee,
thereupon assume all of the rights and obligations of such Servicer under
each Subservicing Agreement selected by the Trustee in its sole discretion.
In such event, the Trustee, its designee or the successor servicer for the
Trustee shall be deemed to have assumed all of the Servicer's interest
therein and to have replaced the Servicer as a party to each such
Subservicing Agreement to the same extent as if such Subservicing Agreement
had been assigned to the assuming party except that the Servicer shall not
thereby be relieved of any liability or obligations under the Subservicing
Agreement. The Servicer shall, upon request of the Trustee but at the
expense of the Servicer, deliver to the assuming party all documents and
records relating to each such Subservicing Agreement and the Contracts then
being serviced and an efforts to effect the orderly and efficient
transfer of the Subservicing Agreement to the assuming party.
Section 5.04. 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
Collection Account.
Section 5.05. Inspection.
----------
(a) During the term of this Agreement, 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 provide reasonable assistance in any examination of such records
by the Trustee or any of its authorized agents. The examination and
assistance referred to in this Section will be conducted in a manner that
does not interfere unreasonably with the Servicer's normal operations or
customer or employee relations. Without otherwise limiting the scope of the
examination the Trustee may make, the Trustee 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 Section 7.01 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 Certificateholders.
Section 5.06. Payment of Taxes. If the Servicer becomes aware of the
----------------
nonpayment by an Obligor of a personal property Tax or other Tax or Tax
related charge that 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 5.02, shall take action to avoid the
attachment of any such lien. If the Servicer shall have paid any such
personal property Tax or other Tax or Tax related 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) 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 Contract 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 personal property Tax
or other Tax or Tax related charge arising during the time such Manufactured
Home is in the Servicer's possession, unless the Servicer is contesting
in good faith the validity of such personal property Tax or other Tax or
Tax related charge on such Manufactured Home. If the Obligor does not
reimburse the Servicer for payment of taxes pursuant to this Section and the
related Contract is liquidated after a default, the Servicer shall be
reimbursed for its payment of such Taxes out of the related Liqui-
dation Proceeds.
Section 5.07. Enforcement.
-----------
(a) When the Servicer shall sue to enforce or collect upon Contracts,
then it shall bring suit in its own name, if possible, or as agent for the
Trust Fund. If the Servicer elects to commence a legal proceeding to enforce
a Contract, the act of commencement shall be deemed to be an automatic
assignment of the Contract to the Servicer for purposes of collection only.
If, however, in any enforcement suit or legal proceeding it is held that the
Servicer may not enforce a Contract on the ground that it is not a real party
in interest or a holder entitled to enforce the Contract, the Trustee on
behalf of the Certificateholders shall, at the Servicer's expense, take such
steps as the Servicer deems necessary to enforce the Contract, including
bringing suit in its name as Trustee hereunder or in 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
reasonable out-of-pocket attorney's fees and expenses incurred in such
enforcement action.
(b) The Servicer shall exercise any rights of recourse against third
Persons that exist with respect to any Contract in accordance with Section
5.02. In exercising such 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.
(c) The Servicer may grant to the Obligor on any Contract any rebate,
refund or adjustment out of the Collection Account that is required because
of an overpayment in connection with the prepayment in full of the Contract
or otherwise. The Servicer, except as required by the Contract or by law,
will not permit any rescission or cancellation of any Contract.
Section 5.08. Hazard Insurance Policies.
-------------------------
(a) Except as otherwise provided in Section 5.08(b), the Servicer shall
cause to be maintained with respect to each Contract (other than Contracts
relating to REO Properties) one or more Hazard Insurance Policies that
provide the same coverage as a standard form fire and extended coverage
insurance policy that is customary in the Servicer's procedures for
manufactured housing contracts owned and/or serviced by the Servicer, issued
by a company authorized to issue such policies in the State in which the
Manufactured Home is located, and in an amount that is not less than the
lesser of the maximum insurable value and the Contract Principal Balance
of the related Contract. 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 and any related interest to the
Obligor's obligation as provided by the Contract but may not add such
premium and interest to the Contract 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
this Section, and shall, to the extent that a 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 in a connection with a hazard as provided in Section 5.08(a) resulting
from the absence or insufficiency of individual Hazard Insurance Policies.
Any such blanket policy shall be in the amount sufficient to cover all losses
in connection with a hazard 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 Collection Account, on the Business Day next preceding
the Determination Date following the Due Period in which the insurance
proceeds from claims in respect of any Contracts under such blanket policy
are 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 Section 5.08(a).
(c) If the Servicer shall have repossessed a Manufactured Home on
behalf of the Trustee or foreclosed upon or otherwise acquired any Mortgaged
Property, the Servicer shall either (i) maintain at its expense a Hazard
Insurance Policy with respect to such Manufactured Home or Mortgaged Property
meeting the requirements of Section 5.08(a) or 5.08(b), 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.
(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 Contract Principal Balance of
any Contract, notwithstanding that the terms of such Contract so permit. The
Servicer shall not be entitled to reimbursement from the Depositor, the
Trustee or the Certificateholders for such costs. Such costs (other than the
cost of the blanket policy) shall only be recovered out of late payments by
the Obligor for such premiums or, if the related Contract is liquidated after
a default, out of the related Liquidation Proceeds.
Section 5.09. Hazard Insurance Policy Collections; Consent to
-----------------------------------------------
Manufactured Home Transfers; Assumption Agreements.
- --------------------------------------------------
(a) The Servicer agrees to present, on behalf of itself, the Trustee
and 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. Any
amounts collected by the Servicer under any such Hazard Insurance Policies
shall be deposited in the Collection Account pursuant to Section 6.04(b)(iv),
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) The Servicer shall not withhold its consent to any transfer of
ownership of a Manufactured Home in accordance with the related Contract
unless the proposed transferee does not meet the Servicer's then applicable
underwriting standards (exclusive of down payment requirements). In
addition, the Servicer shall not withhold such consent if such withholding of
consent is not permitted under applicable law and governmental regulations.
(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, 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 included in the related Contract File. 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. In connection with any such
conveyance through an assumption, modification or supplement, the APR borne
by, and all other material terms of, the related Contract shall not be
changed.
Section 5.10. Realization upon Defaulted Contracts. Subject to
------------------------------------
applicable law, the Servicer shall repossess, replevin, foreclose upon or
otherwise comparably convert the ownership of Manufactured Homes and any
related Mortgaged Properties securing all Contracts that come into default
and that the Servicer believes in its good faith business judgment will not
be brought current; provided that if the Servicer has actual knowledge that a
Mortgaged Property is affected by hazardous waste, then the Servicer shall
not cause the Trust Fund to acquire title to such Mortgaged Property in a
foreclosure or similar proceeding unless such condition is remedied. In
connection with such repossession, foreclosure or other conversion, the
Servicer shall follow such practices and procedures as it shall deem
necessary or advisable and as shall be consistent with Section 5.02. Subject
to the foregoing proviso, in the event that title to any Mortgaged Property
is acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee, as Trustee, or, at its
election, to its nominee on behalf of the Trustee, as Trustee. The Servicer
shall manage, conserve and protect such Manufactured Homes and any related
Mortgaged Property for the purposes of their prompt disposition and sale, and
shall dispose of such Manufactured Homes and any related Mortgaged Property
on such terms and conditions as are consistent with Sections 5.02 and 10.12.
Section 5.11. Costs and Expenses. 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 and any
related Mortgaged Property, including, but not limited to: (i) costs of
refurbishing and securing such Manufactured Home; (ii) transportation
expenses incurred in moving the Manufactured Home; (iii) reasonable legal
fees and expenses of outside counsel and any associated court costs; (iv)
rental expenses (including the payment of rent not paid by the defaulting
Obligor) incurred in maintaining a leasehold interest for the Manufactured
Home; and (v) sales commissions paid to Persons that are not Affiliates of
the Servicer. The Servicer shall not incur the foregoing Liquidation
Expenses unless it determines in its good faith business judgment that
incurring such expenses is in accordance with Section 5.02 and will increase
the Net Liquidation Proceeds from such Manufactured Home.
Section 5.12. Trustee to Cooperate. The Servicer is authorized to
--------------------
execute an instrument in satisfaction of any Contract paid in full and any
related Mortgage and do such other acts and execute such other documents as
the Servicer deems necessary to discharge the Obligor thereunder and
eliminate the security interest in the Manufactured Home and any Mortgaged
Property related thereto. 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 Collection Account. Upon request of a Servicing
Officer, the Trustee shall perform such other acts as are reasonably
requested by the Servicer, at the Servicer's expense (including, without
limitation, the execution of documents), and otherwise cooperate with the
Servicer in enforcement of rights and remedies with respect to Contracts.
Section 5.13. Servicing and Other Compensation. The Servicer, as
--------------------------------
compensation for its activities hereunder including, without limitation, the
payment of fees and expenses of the Trustee pursuant to Section 10.05, shall
be entitled to receive on each Distribution Date the Monthly Servicing Fee
pursuant to Section 6.02. Application fees, Late Payment Fees, Extension
Fees, processing fees and any transfer of equity or assumption fees or
Repossession Profits shall be retained by the Servicer as additional
servicing compensation. If, for any Distribution Date, the aggregate
Prepayment Interest Excess exceeds the aggregate Prepayment Interest
Shortfall, such excess shall be retained by the Servicer. If, for any
Distribution Date, the aggregate Prepayment Interest Shortfall exceeds the
aggregate Prepayment Interest Excess, the aggregate Servicing Fee for such
Distribution Date shall be reduced (but not below zero) by an amount equal
to such excess.
Section 5.14. REO Disposition The Servicer shall sell each REO
---------------
Property within two years of its acquisition by the Trust Fund, unless, 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 such
time 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 two-tiered 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) or result in the receipt by the Pooling REMIC or the Issuing 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" that
is subject to taxation under the REMIC Provisions. Pursuant to its efforts
to sell a REO Property, the Servicer shall either itself or through an agent
selected by it 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 it deems to
be in the best interests of it and the Certificateholders for the period
prior to the sale of such REO Property.
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 REO disposition, net of any reimbursement to the
Servicer as provided above, shall be deposited in the Collection Account in
accordance with Section 6.04(b)(ii).
ARTICLE SIX
DISTRIBUTIONS
Section 6.01. Monthly Payments.
----------------
(a) On each Distribution Date the Trustee shall, based upon the
information set forth in the related Monthly Report, withdraw from the
Certificate Account an amount equal to the Available Distribution Amount and
apply such amount in the following order of priority:
(i) concurrently, to each Class of Class A Certificates (A) first,
the related Interest Distribution Amount for such Distribution Date,
with the Available Distribution Amount being allocated among such
Classes pro rata based on their respective Interest Distribution Amounts
and (B) second, the related Carryover Interest Distribution Amount, if
any, for such Distribution Date, with the Available Distribution Amount
being allocated among such Classes of Certificates pro rata based on
their respective Carryover Interest Distribution Amounts;
(ii) to the Class M Certificates, (A) first, the related Interest
Distribution Amount for such Distribution Date and (B) second, the
related Carryover Interest Distribution Amount, if any, for such
Distribution Date;
(iii) to the Class B-1 Certificates, (A) first, the related
Interest Distribution Amount for such Distribution Date and (B) second,
the related Carryover Interest Distribution Amount, if any, for such
Distribution Date;
(iv) to the Class B-2 Certificates, (A) first, the related Interest
Distribution Amount for such Distribution Date and (B) second, the
related Carryover Interest Distribution Amount, if any, for such
Distribution Date;
(v) concurrently, to each Class of Class A Certificates, the
related Unpaid Certificate Principal Shortfall for the Class A
Certificates, if any, for such Distribution Date, allocated among the
Class A Certificates pro rata based on their respective Certificate
Principal Balances;
(vi) to the Class A Certificates, the Class A Formula Principal
Distribution Amount allocated in the following manner and in the
following order of priority; provided, however, that on any Distribution
Date on which the Pool Balance is less than or equal to the aggregate
Certificate Principal Balance of the Class A Certificates immediately
prior to such Distribution Date, the Class A Formula Principal
Distribution Amount will be allocated among the Class A Certificates pro
rata based upon their respective Certificate Principal Balances:
(A) to the Class A-R Certificates until the Class A-R
Certificate Principal Balance has been reduced to zero;
(B) to the Class A-1 Certificates until the Class A-1
Certificate Principal Balance has been reduced to zero;
(C) to the Class A-2 Certificates until the Class A-2
Certificate Principal Balance has been reduced to zero;
(D) to the Class A-3 Certificates until the Class A-3
Certificate Principal Balance has been reduced to zero;
(E) to the Class A-4 Certificates until the Class A-4
Certificate Principal Balance has been reduced to zero; and
(F) to the Class A-5 Certificates until the Class A-5
Certificate Principal Balance has been reduced to zero;
(vii) to the Class M Certificates, (A) first, any related
Liquidation Loss Interest Amount for such Distribution Date, and (B)
second, any related Unpaid Liquidation Loss Interest Shortfall for such
Distribution Date;
(viii) to the Class M Certificates, the related Unpaid
Certificate Principal Shortfall for the Class M Certificates, if any,
for such Distribution Date;
(ix) to the Class M Certificates, the Class M Formula Principal
Distribution Amount, until the Class M Certificate Principal Balance has
been reduced to zero;
(x) to the Class B-1 Certificates, (A) first, any related
Liquidation Loss Interest Amount for such Distribution Date, and (B)
second, any related Unpaid Liquidation Loss Interest Shortfall for such
Distribution Date;
(xi) to the Class B-1 Certificates, the related Unpaid Certificate
Principal Shortfall for the Class B-1 Certificates, if any, for such
Distribution Date;
(xii) to the Class B-1 Certificates, the Class B-1 Formula
Principal Distribution Amount, until the Class B-1 Certificate Principal
Balance has been reduced to zero;
(xiii) to the Class B-2 Certificates, (A) first, any related
Liquidation Loss Interest Amount for such Distribution Date, and (B)
second, any related Unpaid Liquidation Loss Interest Shortfall for such
Distribution Date;
(xiv) to the Class B-2 Certificates, the related Unpaid
Certificate Principal Shortfall for the Class B-2 Certificates, if any,
for such Distribution Date;
(xv) to the Class B-2 Certificates, the Class B-2 Formula Principal
Distribution Amount, until the Class B-2 Certificate Principal Balance
has been reduced to zero;
(xvi) to each Class of Class A Certificates, sequentially in
accordance with clause (vi), the Accelerated Principal Distribution
Amount for such Distribution Date, in reduction of the Certificate
Principal Balance of such Classes, until each is reduced to zero;
(xvii) to the Class X Certificates, in the following sequential
order;
(A) the current Class X Strip Amount; and
(B) any Class X Strip Amounts from previous Distribution
Dates remaining unpaid;
(xviii) to the Servicer, an additional servicing fee equal to
one-twelfth of the product of 0.08% and the Pool Balance at the
beginning of the related Due Period; and
(xix) any remainder, to the Class A-R Certificates.
The aggregate amounts distributed to Certificateholders of each Class of
Certificates on account of principal shall not exceed the Initial Certificate
Principal Balance of such Class of Certificates. Distributions to the
Certificateholders shall be made such that the Trustee shall distribute to
each Certificateholder as of the related Record Date an amount equal to, in
the case of (1) the Class A Certificates, the product of the aggregate
Percentage Interest evidenced by such Certificateholder's Class A
Certificates and the Class A-R, Class A-1, Class A-2, Class A-3, Class A-4 or
Class A-5 Distribution Amount, as the case may be, for such Distribution
Date, (2) the Class M Certificates, the product of the aggregate Percentage
Interest evidenced by such Certificateholder's Class M Certificates and the
Class M Distribution Amount for such Distribution Date, (3) the Class B
Certificates, the product of the aggregate Percentage Interest evidenced by
such Certificateholder's Class B Certificates and the Class B-1 or B-2
Distribution Amount, as the case may be, for such Distribution Date and (4)
the Class X Certificates, the entire amount distributable in respect thereof
on 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 (i) so long as DTC or its nominee
is the Depository, or (ii) if neither DTC nor its nominee is the Depository
and such Certificateholder holds Certificates with original denominations
aggregating at least $5 million and has given the Trustee appropriate
written instructions at least five Business Days prior to the related
Record 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 Collection
Account or 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
11.01(b). Final payment of any Certificate shall be made only upon
presentation of such Certificate at the office or agency of the Certificate
Registrar.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing
such distribution to the Certificate Owners that it represents and to each
indirect participating brokerage firm (a "brokerage firm" or "indirect
participating firm") for which it acts as agent. Each brokerage firm shall
be responsible for disbursing funds to the Certificate Owners that it
represents. All such credits and disbursements with respect to a Book-Entry
Certificate are to be made by the Depository and the Depository Participants
in accordance with the provisions of the related Certificates. Neither the
Trustee, the Certificate Registrar, the Depositor nor the Servicer shall have
any responsibility therefor except as otherwise provided by applicable law.
To the extent applicable and not contrary to the rules of the Depository, the
Trustee shall comply with the provisions of the forms of the Certificates as
set forth as Exhibits.
Section 6.02. Withdrawals from the Collection Account.
---------------------------------------
(a) The Servicer may, from time to time as provided herein, make
withdrawals from the Collection Account of amounts deposited therein pursuant
to Section 6.04 that are attributable to the Contracts for the following
purposes:
(i) on each Distribution Date, to pay to the Trustee the Monthly
Trustee Fee;
(ii) to pay to the Seller with respect to each Repurchased Contract
in respect thereof all amounts received thereon that are specified in
such Section to be property of the Seller;
(iii) to reimburse itself for the payment of Taxes 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, as permitted by Section 5.06;
(iv) to pay to itself the Monthly Servicing Fee;
(v) 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 Collection 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 5.07, 5.08 or 5.11 or to a previous Servicer under
Section 8.08;
(vi) to reimburse itself for any Nonrecoverable Advance or Advances
in accordance with Section 6.03(c) or 6.03(b) and for Advances in
respect of Liquidated Contracts in accordance with Section 6.03(c);
(vii) after the Certificate Principal Balance of each Class of
Certificates has been reduced to zero, to reimburse the Depositor for
expenses incurred and reimbursable to it pursuant to Section 8.06; and
(viii) to withdraw any amount deposited in the Collection
Account that was not required to be deposited therein (including any
collections on the Contracts that, pursuant to Section 2.01, are not
part of the Trust Fund).
(b) On each Deposit Date, the Servicer shall withdraw from the
Collection Account an amount equal to the Available Distribution Amount for
the related Distribution Date and shall deposit such amount in the
Certificate Account.
(c) Since, in connection with withdrawals pursuant to Section
6.02(a)(ii), (a)(iii) and (a)(v), 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
Collection Account pursuant to such clauses.
Section 6.03. Advances.
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(a) By the close of business on each Deposit Date, the Servicer shall
deposit in the Certificate Account, out of its own funds, an amount equal to
the Advances to be made in respect of the related Due Period.
(b) On each Distribution Date, the Servicer shall reimburse itself for
the Outstanding Amount Advanced to the extent of actual collections of
payments on the Contracts.
(c) If the Servicer determines that any Advance made pursuant to
Section 6.03(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 Collection Account for the amount
of such Nonrecoverable Advance, but only to the extent of such Outstanding
Amount Advanced.
Section 6.04. Establishment of and Deposits in the Collection Account
-------------------------------------------------------
and the Certificate Account.
- ---------------------------
(a) (i) On or before the Closing Date, the Servicer shall establish and
thereafter maintain one or more Collection Accounts that are Eligible
Accounts, in the form of separate custodial accounts, titled "IndyMac
Manufactured Housing in trust for CSFBMSC Series 1998-1". The Servicer
shall cause monies in the Collection Account to be invested in Eligible
Investments selected by the Servicer, which shall mature or, in the case
of a money market fund, be redeemed not later than the Determination
Date next following the date of such investment (except that if such
Eligible Investment is an obligation of the institution that maintains
the Collection Account, then such Eligible Investments shall mature or,
in the case of a money market fund, be redeemed not later than the
related Deposit 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 Servicer. The Servicer shall select such Eligible Investments so as
to achieve the following objectives in the order stated: (i)
preservation of principal and (ii) maximization of income. If an
instrument or account ceases to meet the requirements of an Eligible
Investment or Eligible Account, the Servicer shall cause all monies in
such investment and account to be withdrawn and deposited in an Eligible
Investment (which Eligible Investment shall be selected by the Servicer)
or Eligible Account, as the case may be, within 20 Business Days of the
occurrence of such investment or account ceasing to meet such
requirements. All net income and gain realized from any such
investments, to the extent provided by this Agreement, shall be added to
the Collection Account.
(ii) On or before the Closing Date, the Trustee shall establish and
thereafter maintain, one or more Certificate Accounts that are Eligible
Accounts, in the form of separate custodial accounts, titled "IndyMac
Manufactured Housing Contract Pass-Through Certificates, Series 1998-1
(Credit Suisse First Boston Mortgage Securities Corp., Depositor) in
trust for the Trustee". The Trustee shall cause monies in the
Certificate Account to be invested at the written direction of the
Servicer in Eligible Investments selected by the Servicer, which shall
mature or, in the case of a money market fund, be redeemed not later
than the Deposit 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 the related 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. The Servicer shall select such
Eligible Investments so as to achieve the
following objectives in the order stated: (i) preservation of principal
values and (ii) maximization of income. If an instrument or account
ceases to meet the requirements of an Eligible Investment or Eligible
Account, the Trustee shall cause all monies in such investment and
account to be withdrawn and deposited in an Eligible Investment (which
Eligible Investment shall be selected by the Servicer) or Eligible
Account, as the case may be, within 20 Business Days of the occurrence
of such investment or account ceasing to meet such requirements. All
net income and gain realized from any such investments, to the extent
provided by this Agreement, shall be added to the Certificate Account.
(b) No later than the second Business Day following the Servicer's
receipt of the amounts delineated in clauses (i) through (iv) below, the
Servicer shall deposit in the Collection Account the following amounts (net
of all amounts the Servicer, if IndyMac is acting as Servicer, would be
entitled to withdraw therefrom pursuant to Section 6.02) in respect of the
related Distribution Date and Due Period:
(i) all amounts received from Obligors with respect to principal
of and interest on the Contracts;
(ii) all Net Liquidation Proceeds and the proceeds of the
disposition of REO Properties;
(iii) the Repurchase Price of each Repurchased Contract and any
other amounts required to be deposited by the Seller pursuant to
Section 3.05(a); and
(iv) deductible amounts in respect of Hazard Insurance Policies
pursuant to Section 5.08(b) and, to the extent provided in
Section 5.09(a), amounts collected by the Servicer under Hazard
Insurance Policies.
Section 6.05. 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 to the other parties hereto and
to each Rating Agency prior to such transfer.
Section 6.06. Transfer of Collection Account. The Servicer may
------------------------------
transfer the Collection Account to a different depository institution from
time to time, so long as the Collection Account remains an Eligible Account.
The Servicer shall give notice of any transfer to the other parties hereto
and to each Rating Agency prior to such transfer.
ARTICLE SEVEN
REPORTS
Section 7.01. Monthly Reports. Not later than 1:00 p.m., Eastern
---------------
Standard Time, on each Determination Date, the Servicer shall cause the
Trustee to receive a "Monthly Report," which shall include with respect to
the related Distribution Date and Due Period, (i) all information with
respect to the Contracts necessary to enable the Trustee to send statements
to Certificateholders pursuant to Section 7.06(a), (ii) the Average Sixty-Day
Delinquency Ratio, the Average Thirty-Day Delinquency Ratio and the Current
Realized Loss Ratio, (iii) the aggregate Contract Principal Balance and
number of cumulative repossessions, (iv) the amount of Cumulative Realized
Losses and (v) any additional information required to permit the Trustee to
make the distributions required by Section 6.01(a). The Trustee shall not be
under any duty to recalculate or verify the information provided to it in any
Monthly Report.
Section 7.02. Servicer's Certificate. Each Monthly Report shall be
----------------------
accompanied by a Servicer's Certificate, which shall, among other things,
certify the accuracy of the Monthly Report and that no Event of Default or
event that with notice or lapse of time or both would become an Event of
Default has occurred, or if such event has occurred and is continuing,
specify the event and its status.
Section 7.03. Other Data. Upon the receipt of a request therefor from
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the Trustee, the Servicer shall furnish the Trustee with such data regarding
the Contracts and the servicing thereof as may reasonably be requested.
Section 7.04. Annual Statement as to Compliance. The Servicer will
---------------------------------
deliver to the Depositor and the Trustee on or before March 31 of each year,
beginning with the first March 31 that occurs at least three months after the
Cut-off Date, an Officer's Certificate stating, as to the signer thereof,
that (i) a review of the activities of the Servicer during the preceding
calendar year (or since the Closing Date in the case of the first such
Officer's Certificate) and of performance under this Agreement has been made
under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such year (or since the Closing
Date in the case of the first such Officer's Certificate), 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 7.05. Annual Independent Public Accountants' Servicing Report.
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On or before March 31 of each year, beginning with the first March 31 that
occurs at least three months after the Cut-off Date, the Servicer, at its
expense, shall cause a firm of independent public accountants that is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Depositor and the Trustee to the effect that such firm has
examined certain documents and records relating to the servicing of the
Contracts under this Agreement and that, on the basis of such examination
conducted substantially in compliance with this Agreement (or such other
agreements) and generally accepted auditing standards, nothing came to the
attention of such firm that caused such firm to believe that there were any
exceptions or errors in the records relating to Contracts serviced by
the Servicer, insofar as such exceptions or errors relate to accounting
matters. For purposes of such statement, such firm may assume
conclusively that all pooling and servicing agreements among the
Depositor, the Servicer and the Trustee relating to certificates evidencing
an interest in manufactured housing contracts are substantially similar
to one another except for any such pooling and servicing agreement that
by its terms specifically states otherwise.
Section 7.06. Statements to Certificateholders.
--------------------------------
(a) Concurrently with each distribution to Certificateholders pursuant
to Article Six, 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 and Due Period prepared by the
Trustee (in the case of (vii) through (xiii) and (xv) below, based on
information furnished by the Servicer) setting forth:
(i) the aggregate amount distributed on each Class of
Certificates, separately identifying the portion thereof that
constitutes principal and interest;
(ii) the Interest Distribution Amount, Carryover Interest
Distribution Amount, Liquidation Loss Interest Amount and Unpaid
Liquidation Loss Interest Shortfall in respect of each Class of
Certificates;
(iii) the Formula Principal Distribution Amount and Unpaid
Certificate Principal Shortfall in respect of each Class of
Certificates;
(iv) the Accelerated Principal Distribution Amount,
Overcollateralization Reduction Amount, Target Overcollateralization
Amount and Current Overcollateralization Amount;
(v) the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class A-R, Class M, Class B-1 and Class B-2 Certificate Principal
Balances, after giving effect to the distributions of principal made on
such Distribution Date;
(vi) the Adjusted Certificate Principal Balance of the Class M,
Class B-1 and Class B-2 Certificates, after giving effect to the
distributions of principal and allocation of Liquidation Loss Amounts
made on such Distribution Date;
(vii) the Monthly Servicing Fee and other servicing
compensation;
(viii) the number of and aggregate Contract Principal Balances
of Contracts with payments delinquent 30 to 59, 60 to 89 and 90 or more
days, respectively;
(ix) the number of and aggregate Contract Principal Balances of
Contracts relating to Manufactured Homes that were repossessed since the
immediately preceding Distribution Date;
(x) the number of and aggregate Contract Principal Balances of
Contracts (other than Liquidated Contracts) relating to Manufactured
Homes that were repossessed remaining in the Trust Fund on such
Distribution Date;
(xi) the number of and aggregate Contract Principal Balances of
Contracts relating to Manufactured Homes that were liquidated since the
immediately preceding Distribution Date;
(xii) the Realized Losses with respect to such Distribution
Date;
(xiii) the Cumulative Losses with respect to such Distribution
Date;
(xiv) the Pool Factor for each Class of Certificates after
giving effect to the payment of principal to be made on such
Distribution Date; and
(xv) such other customary factual information as is available to
the Servicer as the Servicer deems necessary and can be obtained
reasonably from its existing data base to enable Certificateholders to
prepare their tax returns.
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 Trustee shall prepare and furnish to each Person who at
any time during the calendar year was the Holder of a Certificate, a state-
ment containing the information set forth in clauses (i) and (ii) above, in
the case of Class A, Class M and Class B Certificateholders, and (v), (vi)
and (vii) above, in the case of Holders of Subordinated Certificates,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of
the Code as from time to time in force.
(b) Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish or cause to be furnished to each Person who
at any time during the calendar year was a holder of Class X Certificates a
statement containing the applicable distribution information provided
pursuant to this Section aggregated for such calendar year or applicable
portion thereof during which such Person was a holder of the Class X
Certificates. Such obligation shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code.
(c) A Certificateholder holding (or Certificate Owner owning beneficial
interests in) Certificates of a Class representing in the aggregate at least
5% of the Percentage Interest of such Class shall, upon written request to
the Trustee, be entitled to receive copies of all reports provided to the
Trustee at such Holder's or Owner's expense.
Section 7.07. Other Reports. The Trustee shall file on behalf of the
-------------
Trust all reports required to be filed with the Securities and Exchange
Commission or any exchange or association of securities dealers pursuant to
the Securities Exchange Act of 1934, as amended, or any rules and regulations
promulgated thereunder.
ARTICLE EIGHT
INDEMNITIES; THE DEPOSITOR AND THE SERVICER
Section 8.01. Liabilities to Obligors. No liability to any Obligor
-----------------------
under any of the Contracts arising out of any act or omission to act of the
Seller or the Servicer in servicing the Contracts prior to the Closing Date
is intended to be assumed by any other party hereto, or the Certificate-
holders 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, each party hereto and the Certificateholders
expressly disclaim such assumption.
Section 8.02. Tax Indemnification. The Seller agrees to pay, and to
-------------------
indemnify, defend and hold harmless the Trust Fund, the Trustee, the
Certificate Registrar, the Paying Agent, the Depositor and the
Certificateholders from any Taxes that may at any time be asserted with
respect to, and as of the date of, the transfer of the Contracts from the
Seller to the Depositor and from the Depositor to the Trust Fund, including,
without limitation, any sales, gross receipts, general corporation, personal
property, privilege or license Taxes (but not including any income or
franchise Taxes or federal, state or other Taxes arising out of the creation
of the Trust Fund and the issuance of the Certificates or distributions with
respect thereto) and costs, expenses and reasonable counsel fees in defending
against the same.
Section 8.03. Servicer's Indemnities. The Servicer shall defend and
----------------------
indemnify the Trust Fund, the Trustee, the Certificate Registrar, the Paying
Agent, the Depositor, Authenticating Agent and the Certificateholders against
any and all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel and expenses of litigation,
arising from third party claims or actions in respect of any action taken or
failed to be taken by the Servicer with respect to any Contract, Manufactured
Home or Mortgaged Property and any failure by the Servicer to perform its
obligations in compliance with this Agreement. This indemnity shall survive
any Event of Default (but the obligations of the Servicer under this Section
shall not relate to any actions of any subsequent Servicer after an Event of
Default), any payment of the amount owing under, or any repurchase by the
Seller of, any such Contract, the resignation or removal of the Servicer and
the termination of this Agreement.
Section 8.04. Operation of Indemnities. Indemnification under this
------------------------
Article shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If the Seller or the Servicer has made
any indemnity payments to the Trustee pursuant to this Article and the
Trustee thereafter collects any of such amounts from others, the Trustee will
repay such amounts collected to the Seller or the Servicer, as the case may
be, together with any interest collected thereon.
Section 8.05. Merger or Consolidation of the Depositor, the Seller or
-------------------------------------------------------
the Servicer. The Seller and the Servicer will each keep in full effect its
- ------------
existence, rights and franchises as a corporation, and will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of this Agreement, the Certificates or any of
the Contracts and to perform its duties under this Agreement.
Any person into which the Depositor, the Seller or the Servicer may be
merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which any such entity shall be a party, or any
Person succeeding to the business of any such entity, shall be the successor
of the Depositor, the Seller or the Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Servicer shall satisfy Section 8.08(a)(ii) with respect to the
qualifications of a successor to the Servicer. The Seller, the Depositor and
the Servicer shall promptly notify each Rating Agency of any such merger,
conversion or consolidation to which it is a party.
Section 8.06. Limitation on Liability of the Depositor and Others.
---------------------------------------------------
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Trustee or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor or any such individual
against any liability that would otherwise be imposed by reason of its
willful misconduct, bad faith or negligence. The Depositor and any of its
directors, officers, employees or agents may rely in good faith on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor shall not be
under any obligation to appear in, prosecute or defend any legal action that
arises under this Agreement and that in its opinion may involve it in any
expense or liability; provided, however, that the Depositor may in its
discretion undertake any such action that 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 action and any liability
resulting therefrom shall be expenses, costs and liabilities payable from the
Collection Account and the Depositor shall be entitled to be reimbursed
therefor out of monies on deposit in the Collection Account as provided by
Section 6.02(a)(vii); provided that such reimbursement shall be made, from
time to time on one or more Distribution Dates, only out of the Available
Distribution Amount that remains after the distributions to the Certificate-
holders on such Distribution Date have been made.
Section 8.07. Assignment by Servicer. The Servicer may, with the prior
----------------------
written consent of the Depositor and notice to each Rating Agency, 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
that is satisfactory to the Trustee and the Depositor, in their sole and
reasonable judgment, such Person is willing to service the Contracts and such
Person executes and delivers to the Depositor and the Trustee an agreement,
in form and substance reasonably satisfactory to the Depositor 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; provided further that
such assignment and delegation will not cause any Rating Agency to
qualify, downgrade or withdraw its then-current rating of any Rated
Certificates, 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 8.08. Successor to the Servicer.
-------------------------
(a) In connection with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to Section 9.01,
the Trustee shall (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this Agreement (except
any liability or responsibility for any act or omission that arose prior to
the Servicer's termination and the duty to pay and indemnify the Trustee
pursuant to Section 10.05), or (ii) appoint a successor acceptable to the
Depositor, which shall have a net worth of not less than $10 million and
shall have serviced for at least one year prior to such appointment a
portfolio of not less than $100 million aggregateprincipal amount of manufac-
tured housing installment sales contracts and/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 10.05 shall be subject to negotiation at the time of such
appointment). If the Trustee becomes the successor to the Servicer in accor-
dance with this Section, 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 in clause (ii) above. In connection with any appointment of a
successor Servicer, the Trustee may make such arrangements for the compensa-
tion of such successor out of payments on Contracts as it and such successor
shall agree or such court shall determine; provided, however, that no such
compensation shall be in excess of a monthly amount equal to 1/12 of the
product of 1.25% and the Pool 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 8.07 or 9.01, 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 that it is obligated to exercise under this
Agreement, shall cooperate with the Trustee and any successor Servicer in
effecting the termination of its 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 the
Servicer pursuant to Section 8.07 or removal of the Servicer pursuant to
Section 9.01 shall not become effective until a successor Servicer shall be
appointed pursuant to this Section and shall in no event relieve the Seller
of liability pursuant to Sections 3.05 and 10.05. Nothing herein shall be
construed to impose any obligation of the Seller upon the Trustee or
any successor to the Servicer under any circumstances.
(b) Any successor Servicer appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Trustee an instrument
accepting such appointment, whereupon such successor Servicer 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 8.07 or 9.01
or the termination of this Agreement pursuant to Section 11.01 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 Servicer the funds in
the Collection Account and all Contract Files (to the extent in the
Servicer's possession), Servicing 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 Servicer 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, without limitation, 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 successor Servicer, the
Trustee shall notify in writing the Certificateholders of such appointment.
ARTICLE NINE
DEFAULT
Section 9.01. Events of Default. If any one or more of the following
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events (each, an "Event of Default") shall occur and be continuing:
(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 this
Agreement that continues unremedied for a period of five days after the
date upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee or the
Depositor or to the Servicer, the Trustee and the Depositor by the
Holders of Certificates evidencing Fractional Interests aggregating not
less than 25%;
(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 that continues
unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Trustee or the Depositor, or to the
Servicer, the Trustee and the Depositor by the Holders of Certificates
evidencing Fractional Interests aggregating not less than 25%;
(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 trustee, conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling 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 90 days;
(d) the Servicer shall consent to the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling 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, voluntarily suspend payment of its
obligations or take any corporate action in furtherance of any of the
foregoing;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee may, and at the written direction of the
Holders of Certificates evidencing Fractional Interests aggregating not less
than 51% by notice in writing to the Servicer shall, terminate all the rights
and obligations of the Servicer under this Agreement and in, to and under the
Contracts and the proceeds thereof. The Trustee shall send a copy of any
such notice 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 8.08. Upon the
occurrence of an Event of Default that 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 Holders of Certificates unless such Certificateholders have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities the Trustee may incur.
Section 9.02. Waiver of Defaults. The Holders of a majority of
------------------
outstanding Certificates 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. Notwithstanding the foregoing, except in the case of a
default by the Servicer in the making of any required remittance to the
Trustee for distribution on any of the Certificates, the Trustee may waive a
default by the Servicer if and so long as the Trustee in good faith
determines that such waiver is in the interests of the Holders of
Certificates. 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 9.03. Trustee to Act; Appointment of Successor. On and after
----------------------------------------
the time the Servicer receives a notice of termination pursuant to Section
9.01, the Trustee or an entity appointed pursuant to Section 8.08(a)(ii)
shall be the successor in all respects to the Servicer as provided in Section
8.08.
Section 9.04. Notification to Certificateholders.
----------------------------------
(a) Upon any such termination pursuant to Section 9.01, 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 known
to the Trustee, the Trustee shall transmit by mail to all Holders of
Certificates, notice of such Event of Default unless such Event of Default
shall have been cured or waived.
Section 9.05. Effect of Transfer.
------------------
(a) After a transfer of servicing duties to a successor Servicer
pursuant to Section 8.05, 8.07, 8.08 or 9.01, (i) the Trustee or such
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 and (ii) 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 8.08 or 9.01, shall remain liable for any liability of
the Servicer arising prior to the date of transfer and shall remain entitled
to any compensation due the Servicer that had already accrued prior to such
transfer.
(b) 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 Eight) other
than those relating to the management, administration, servicing or
collection of the Contracts.
ARTICLE TEN
THE TRUSTEE
Section 10.01. Duties of Trustee. The Trustee, prior to the occurrence
-----------------
of an Event of Default and after the curing or waiver of all Events of
Default that 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 (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, except if it is acting as Servicer, in which case it shall
use the same degree of care and skill as is required of the Servicer.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that 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 willful 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 that 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, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(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 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;
(iv) No provision of this Agreement shall be construed to 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; and
(v) No provision of this Agreement shall be construed to hold the
Trustee accountable for any duty of the Servicer, or for the acts or
omissions of the Servicer, until such time as the Trustee may be
required to act as Servicer pursuant to Section 9.03.
Section 10.02. Certain Matters Affecting the Trustee. Except as
-------------------------------------
otherwise provided in Section 10.01:
(a) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's 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 of its selection and any
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 that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
been cured or waived), to exercise such of the rights and powers vested
in it by this Agreement, and, unless it is acting as Servicer, to use
the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs;
(d) 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 waiver of all Events of Default that may have
occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
the Holders of Certificates evidencing Fractional Interests aggregating
not less than 25%; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a
condition to such proceeding, and 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,
attorneys or custodians, and shall have no liability for the acts or
omissions of any such agents, attorneys or custodians appointed by the
Trustee with due care; and
(g) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer has actual knowledge
thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office, and
such notice references the Certificates and this Agreement.
Section 10.03. Trustee Not Liable for Certificates or Contracts. The
------------------------------------------------
recitals contained herein and in the Certificates (other than the certificate
of authentication of the Certificates) shall be taken as the statements of
the Depositor, the Seller 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, the Certificates (other than the certificate of authentication of
the Certificates), the Sale and Purchase Agreement or of any Contract or
related document. The Trustee shall not be accountable for the use or
application by the Depositor, the Seller or the Servicer of any of the
Certificates or of the proceeds thereof, or for the use or application of any
funds paid to the Depositor, the Seller or the Servicer in respect of the
Contracts or deposited in or withdrawn from the Certificate Account by the
Depositor, or the Certificate Account or Collection Account by the Seller or
the Servicer.
Section 10.04. Trustee May Own Certificates. The Trustee in its
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individual or any other capacity may become the owner or pledgee of
Certificates and may transact business with the other parties hereto with the
same rights it would have if it were not Trustee.
Section 10.05. Servicer to Pay Fees and Expenses of Trustee. The
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Servicer covenants and agrees to pay, from its own funds to the extent that
such compensation is not paid in accordance with Section 6.02(a)(i), to the
Trustee from time to time, and the Trustee shall 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 (except at such times that the
Trustee is acting as successor Servicer hereunder)) or reimburse the Trustee,
to the extent requested by the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any 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
10.11, 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 (except at such times that the Trustee is acting as
successor Servicer hereunder)) the Trustee for, and to hold it harmless
against, any loss, liability or expense, including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee), incurred
without negligence or bad faith on the part of the Trustee arising out of or
in connection with the acceptance or administration of the trust created by
this Agreement and its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exer-
cise or performance of any of its powers or duties hereunder. The covenants
in this Section shall be for the benefit of the Trustee in its capacity as
Trustee, Paying Agent, Authenticating Agent and Certificate Registrar here-
under, and shall survive removal or resignation of the Trustee or the
termination of this Agreement. Except as otherwise provided herein, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties
as Tax Matters Person.
Section 10.06. Eligibility Requirements for Trustee. There shall at
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all times be a Trustee hereunder that shall be either (i) BNY or any other
Person into which BNY is merged or consolidated or to which all or
substantially all of the properties and assets of BNY are transferred as an
entirety, provided that such other Person has accepted appointment as Trustee
under this Agreement in accordance with Article Ten, and that such entity is
authorized to exercise corporate trust powers under the laws of the United
States or any State and has all necessary trust powers to perform its obliga-
tions hereunder, or (ii) a corporation or banking association organized and
doing business under the laws of the United States or any State authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50 million, subject to supervision or examination by
federal or state authority and is not an Affiliate of the Servicer. If the
corporation or banking association referred to in clause (ii) above 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, 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.
If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 10.07. Resignation and Removal of the Trustee. The Trustee at
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any time may resign and be discharged from the trusts hereby created by
giving written notice thereof to the other parties hereto and each Rating
Agency. Upon receiving such notice of resignation, the Depositor promptly
shall 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
Section 10.06 and shall fail to resign after written request therefor by the
Depositor, 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 Depositor 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. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after
receipt of such notice of removal, the removed Trustee may petition any court
of competent jurisdiction for the appointment of a successor trustee.
The Holders of Class A Certificates or, if the Class A Certificate Prin-
cipal Balance is zero, Class M and Class B Certificates, evidencing
Percentage Interests aggregating more than 50% of the Class A Certificates or
the Class M and Class B Certificates, voting together as a single class, as
the case may be, may remove the Trustee at any time and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Certificateholders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Depositor, 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 this Section shall become effective upon acceptance of
appointment by the successor Trustee as provided in Section 10.08.
Section 10.08. Successor Trustee. Any successor Trustee appointed as
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provided in Section 10.07 shall execute, acknowledge and deliver to the
Depositor and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee 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 for more fully and certainly vesting and confirming in the successor
Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible under Section 10.06.
Upon acceptance of appointment by a successor Trustee as provided in
this Section, the Depositor 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 to each Rating Agency. If the
Depositor fails to mail such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Depositor.
Section 10.09. Merger or Consolidation of Trustee. Any corporation
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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 all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible under the provisions of Section 10.06, 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.
Section 10.10. 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 or the Manufactured Homes, the Depositor and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Fund, and to vest in such Person or
Persons, in such capacity, such title to the Trust Fund, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts, as the Depositor and the Trustee may consider
necessary or desirable. If the Depositor 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 10.06 and no notice to
Certificateholders of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 10.08.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section, 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 the law of any jurisdiction in which
any particular act or acts are to be performed or 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. 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 shall relieve the Trustee of its duties,
obligations or liabilities under this Agreement.
Section 10.11. Appointment of Office or Agency. The Trustee will
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maintain or appoint an office or agency in New York, New York where
Certificates may be surrendered for registration of transfer or exchange.
The Trustee initially designates its Corporate Trust Office, for the purpose
of keeping the Certificate Register. The Certificate Register may be kept in
an electronic form capable of printing out a hard copy of the Certificate
Register. The Trustee will maintain an office at the address stated in
Section 12.10 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 10.12. REMIC Administration.
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(a) For federal income tax purposes, the Trust Fund shall include two
REMICs, the Pooling REMIC (the "Pooling REMIC") and the Issuing REMIC (the
"Issuing REMIC"). The Certificates, other than the Class A-R Certificates,
shall be issued by the Issuing REMIC. The Class A-R Certificates shall
represent beneficial ownership of the residual interest issued by the Pooling
REMIC and the residual interest issued by the Issuing REMIC. The Pooling
REMIC shall be evidenced by the Pooling residual interest and by the Pooling
Interests having the characteristics and terms set forth below, which
interests (other than the residual interest the beneficial ownership of which
shall be represented by the Class A-R Certificates) shall be issued by the
Pooling REMIC to the Trustee. The Pooling Interests and the proceeds thereof
shall be assets of the Issuing REMIC.
(b) The Pooling Interests will consist of the A1, A2, A3, A4, A5, A6,
M, B1, and B2. Each Pooling regular interest will bear interest at the
Weighted Average Net Contract Rate.
The initial Pooling Balance of each Pooling Interest and its
corresponding Issuing Class are as follows:
<TABLE>
<CAPTION> Principal Corresponding
Balance Class
<S> <C> <C>
Pooling Interest A1 $7,000,000 A-1
Pooling Interest A2 $26,850,000 A-2
Pooling Interest A3 $24,350,000 A-3
Pooling Interest A4 $18,300,000 A-4
Pooling Interest A5 $39,020,000 A-5
Pooling Interest A6 $100 A-R
Pooling Interest M $11,699,000 M
Pooling Interest B1 $12,429,000 B-1
Pooling Interest B2 $6,580,841 B-2
</TABLE>
(c) Realized Losses for each Distribution Date shall be allocated
(i) first to Pooling Interest B2;
(ii) second to Pooling Interest B1;
(iii) third to Pooling Interest M; and
(iv) fourth, pro rata according to the outstanding principal
balances of Pooling Interests A1, A2, A3, A4, A5 and A6. No funds shall
be distributed to the Class A-R Certificates with respect to the Pooling
REMIC's residual interest until all prior Realized Losses have been
reimbursed to the Pooling Interests.
(d) The Formula Principal Distribution Amount on each Distribution Date
will be allocated in the following order:
(i) first, to Pooling Interest B2 until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(ii) second, to Pooling Interest B1 until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(iii) third, to Pooling Interest M until its principal balance
has been reduced to what will be the principal balance of its
corresponding class after taking into account the distributions and
allocation of Realized Losses to be made on such Distribution Date;
(iv) fourth, to Pooling Interest A6 until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(v) fifth, to Pooling Interest A5 until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(vi) sixth, to Pooling Interest A4 until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(vii) seventh, to Pooling Interest A3 until its principal
balance has been reduced to what will be the principal balance of its
corresponding class after taking into account the distributions and
allocation of Realized Losses to be made on such Distribution Date;
(viii) eighth, to Pooling Interest A2 until its principal
balance has been reduced to what will be the principal balance of its
corresponding class after taking into account the distributions and
allocation of Realized Losses to be made on such Distribution Date; and
(ix) ninth, to Pooling Interest A1 until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date.
(e) The Pooling Interests shall be issued as non-certificated
interests. The A-R Certificates shall be issued in fully registered
certificated form and shall be executed and countersigned as provided in
Section 4.01.
(f) On each Distribution Date, in addition to amounts otherwise
distributable thereon pursuant to Section 6.01, the Trustee shall distribute
to the Holder of the Class A-R Certificate with respect to the Pooling
residual interest any amounts remaining in the Pooling REMIC after all
amounts required to be applied pursuant to the preceding paragraphs have been
so applied, and shall distribute to the Holder of the Class A-R Certificate
with respect to the Issuing residual any amounts remaining in the Issuing
REMIC after all amounts required to be applied pursuant to the preceding
paragraphs have been so applied.
(g) The Pooling Interests identified in subparagraph (b) above shall be
designated as the "regular interests" and the Pooling residual, the
beneficial ownership of which shall be represent by the Class A-R
Certificate, as the single class of "residual interest" in the Pooling REMIC
for purposes of the REMIC provisions. Classes A-1, A-2, A-3, A-4, A-5, M,
B-1, and B-2 shall be designated as regular interests in the Issuing REMIC.
In addition, ten separate regular interests in the Issuing REMIC (each, a
"Class X Component") shall have notional balances equal to the principal
balances of each Pooling Interest. Each Class X Component shall represent the
right to interest on its notional balance equal to the difference between the
Weighted Average Net Contract Rate and the Pass-Through Rate on the Issuing
class corresponding to each such Pooling Interest (the "Class X Strip
Amount"). The beneficial ownership of all such interests shall be
represented by the Class X Certificate. The Issuing residual interest, the
beneficial ownership of which shall also be represented by the Class A-R
Certificate, shall be designated as the single class of "residual interest"
in the Issuing REMIC for purposes of the REMIC Provisions.
(h) Any amounts paid on the Class X Certificate shall be treated as
consisting first of the right to current interest. Any amounts in excess of
current interest shall be applied pro rata to any Deferred Amounts. The
Class X Certificate shall be treated as entitled to a Deferred Amount to the
extent that the amount distributed on any Distribution Date is less than the
amount due on each regular interest represented by the Class X Certificate.
Any Realized Losses allocated to the Class X Certificate shall be treated as
first proportionately reducing any Deferred Amounts on each regular interest
represented by the Class X Certificate and then its right to current interest
on each regular interest represented by the Class X Certificate. Any funds
ultimately available to reimburse such prior Realized Losses shall be applied
to each regular interest represented by the Class X Certificate in proportion
to the allocation of prior Realized Losses to such interest relative to the
other regular interests represented by the Class X Certificates, and no funds
shall be distributed to the Class A-R Certificates (other than principal
distributions) until all prior Realized Losses have been reimbursed to the
Class X Certificates.
(i) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of Section 860G(a)(9) of the Code.
(j) The Trustee shall pay any and all tax related expenses (not
including taxes) of each REMIC, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial
proceedings with respect to such REMIC that involve the Internal Revenue
Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit, but not expenses of an external audit by a taxing authority or
litigation (except as described in (ii)); or (ii) such expenses or
liabilities (including taxes and penalties) are attributable to the
negligence or willful misconduct of the Trustee in fulfilling its duties
hereunder (including its duties as tax return preparer).
(k) The Trustee shall act as Tax Matters Person for each REMIC and
shall hold the Tax Matters Person Certificate. The Trustee shall prepare,
sign, and file all of each REMIC's federal and state tax and information
returns as such REMIC's direct representative. The expenses of preparing and
filing such returns shall be borne by the Trustee.
(l) The Trustee and the Holders of Certificates shall take any action
or cause each REMIC to take any action necessary to create or maintain the
status of such REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. Neither the
Trustee nor the Holder of any Residual Certificate shall take any action,
cause any REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of such REMIC as a REMIC or
(ii) result in the imposition of a tax upon such REMIC (including but not
limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth on Section
860G(d) of the Code) (either such event, an "Adverse REMIC Event") unless the
Trustee has received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action
will not endanger such status or result in the imposition of such a tax.
(m) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans if permitted by the Servicing Agreement.
(n) The Trustee shall not enter into any arrangement by which any REMIC
will receive a fee or other compensation for services.
(o) Except as provided in Section 3.05, the Trustee shall not 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 Repurchase Price of such
Contract.
Section 10.13. Tax Matters. It is intended that the assets with
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respect to which any REMIC election is to be made shall constitute, and that
the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in and
in accordance with the REMIC Provisions. In furtherance of such intention,
the Trustee covenants and agrees that it shall act as agent (and the Trustee
is hereby appointed to act as agent) on behalf of any such REMIC and that in
such capacity it shall: (a) prepare and file, or cause to be prepared and
filed, in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file or cause to be prepared and filed with
the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to any
such REMIC, containing such information and at the times and in the manner as
may be required by the Code or state or local tax laws, regulations, or
rules, and furnish or cause to be furnished to Certificateholders the
schedules, statements or information at such times and in such manner as may
be required thereby; (b) within 30 days of the Closing Date, furnish or cause
to be furnished to the Internal Revenue Service, on Forms 8811 or as
otherwise may be required by the Code, the name, title, address, and
telephone number 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; (c) make or cause to be
made elections that such assets be treated as a REMIC on the federal tax
return for its first taxable year (and, if necessary, under applicable state
law); (d) prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and to the Internal Revenue Service and, if necessary,
state tax authorities, all information returns and reports as and when
required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a
Person that is not a Permitted Transferee, or an agent (including a
broker, nominee or other middleman) of a Non-Permitted Transferee, or a
pass-through entity in which a Non-Permitted Transferee is the record holder
of an interest (the reasonable cost of computing and furnishing such
information may be charged to the Person liable for such tax); (f) not
knowingly or intentionally take any action or omit to take any action that
would cause the termination of the REMIC status; (g) pay, from the sources
specified in the last paragraph of this section, the amount of any federal or
state tax, including prohibited transaction taxes as described below, imposed
on any such REMIC prior to its termination when and as the same shall be due
and payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings
and shall not prevent the Trustee from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings); (h) ensure that
federal, state or local income tax or information returns shall be signed by
the Trustee or such other person as may be required to sign such returns by
the Code or state or local laws, regulations or rules; (i) maintain records
relating to any such REMIC, including but not limited to the income,
expenses, assets and liabilities thereof and the fair market value and
adjusted basis of the assets determined at such intervals as may be required
by the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and (j) as and when necessary and appropriate,
represent any such REMIC in any administrative or judicial proceedings
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of any such
REMIC, enter into settlement agreements with any governmental taxing agency,
extend any statute of limitations relating to any tax item of any such REMIC,
and otherwise act on behalf of any such REMIC in relation to any tax matter
or controversy involving it. If the Trustee determines, in its sole
discretion, that it is not permitted by applicable law to perform any of the
duties in the preceding sentences, the Servicer shall carry out such duties
pursuant to the instructions of the Trustee and shall be compensated for such
services pursuant to Section 10.05. The Servicer shall not knowingly or
intentionally take any action (or knowingly or intentionally direct the
Trustee to take or omit to take any action) or knowingly or intentionally
omit to take any action (or knowingly or intentionally omit to direct the
Trustee to take any action) if such action or omission (as the case may be)
would cause the termination of the REMIC status of the Trust Fund. The
Depositor and the Servicer shall cooperate with the Trustee or its agent for
such purpose in supplying any information within their control (other than
any confidential information) that is necessary to enable the Trustee to
perform its duties under this Section.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Contracts. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor, any such
additional information or data that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties
as set forth herein. The Depositor hereby indemnifies the Trustee for
any losses, liabilities, damages, claims or expenses of the Trustee arising
from any errors or miscalculations of the Trustee that result from any
failure of the Depositor to provide, or to cause to be provided, accurate
information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of the
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the REMIC as defined in Section 860G(c) of the Code,
on any contribution to the REMIC after the Startup Day pursuant to Section
860G(d) of the Code, or any other tax is imposed, including, without
limitation, any minimum tax imposed upon the REMIC pursuant to Sections 23153
and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, such tax shall be paid by (i) the Trustee, if
any such other tax arises out of or results from a breach by the Trustee of
any of its obligations under this Agreement, (ii) the Servicer, in the case
of any such minimum tax, or if such tax arises out of or results from a
breach by the Servicer or Seller of any of their obligations under this
Agreement, (iii) the Seller, if any such tax arises out of or results from
the Seller's obligation to repurchase a Contract pursuant to Section 3.04 or
3.05 or (iv) in all other cases, or in the event that the Trustee, the
Servicer or the Seller fails to honor its obligations under the preceding
clauses (i), (ii) or (iii), any such tax will be paid with amounts otherwise
to be distributed to the Certificateholders.
ARTICLE ELEVEN
TERMINATION
Section 11.01. Termination.
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(a) The respective obligations and responsibilities of the Seller, the
Depositor, the Servicer (except as to Section 10.05) and the Trustee shall
terminate upon the earliest to occur of: (i) the later of 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 Depositor or the Servicer, on any Distribution Date on or after the first
Distribution Date as of which the Pool Balance is less than 10% of the
Cut-off Date Pool Balance, upon the purchase of the Contracts at a price
equal to the sum of (1) 100% of the unpaid principal balance of each Contract
as of the final Distribution Date, and (2) the lesser of (a) the fair market
value of any REO Property (as determined by the Depositor or the Servicer, as
the case may be, 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 this Section), and (b) the unpaid principal
balance of each Contract related to any REO Property, plus, in the case of
both clause (1) and (2), any Unpaid Liquidation Loss Interest Shortfall and
Liquidation Loss Interest Amount with respect to any Class of Certificates,
together with one month's interest at the applicable APR on the unpaid
principal balance of each Contract (including any Contract as to which the
related Manufactured Home has been repossessed or foreclosed upon and not yet
disposed of); or (iii) the sale by the Trustee of all Contracts pursuant to
Section 11.02. Notwithstanding the foregoing, in no event shall the trust
created hereby continue beyond the earlier to occur of 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 and March 1, 2098. Notwithstanding the foregoing,
the option specified in clause (ii) above shall not be exercisable if there
will not be distributed to the Holders of Certificates of each Class an
amount equal to the Certificate Principal Balance of such Class of
Certificates, together with interest accrued during the related Interest
Accrual Period at the related Pass-Through Rate (including any Liquidation
Loss Interest Amounts), any Carryover Interest Distribution Amount and any
Unpaid Liquidation Loss Interest Shortfall. The Servicer shall have the
prior right to exercise the option to purchase the Contracts pursuant to
clause (ii) above if both the Depositor and the Servicer desire to exercise
such option.
(b) 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 (if the
Depositor is exercising the option given it in Section 11.01(a), upon
direction by the Depositor given ten days prior to the date such notice is to
be mailed) by letter to Certificateholders, the Trustee and each Rating
Agency mailed no later than the 15th day of the month 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 will not be
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 Certificate Registrar shall not register the
transfer or exchange of any Certificates. If such notice is given in
connection with the Depositor's or the Servicer's election to purchase,
the Depositor or the Servicer shall deposit in the Certificate Account on
the Business Day prior to the applicable Distribution Date the amount
described in Section 11.01(a)(ii). Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed, from funds in the
Certificate Account, to Holders of Certificates of each Class, in proportion
to their respective Percentage Interests, an amount equal to the
Certificate Principal Balance of such Class of Certificates, together with
one month's interest on such Certificate Principal Balance at the related
Pass-Through Rate and any Unpaid Liquidation Loss Interest Shortfall or
Carryover Interest Distribution Amount with respect to such Class. Upon
such termination, any amounts remaining in the Certificate Account
(other than amounts retained to meet claims) shall be paid to the Holders
of the Class A-R Certificates. Following such final deposit, 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. Any amounts retained in the Certificate Account that are
owed to Certificateholders that have not surrendered their Certificates
as of the final Distribution Date shall be withdrawn from the Certificate
Account and held in an escrow account with the Trustee pending distribution
pursuant to Section 11.01(c).
(c) If all of the Certificateholders have not surrendered their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, 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 Certificates shall not have been
surrendered for cancellation, the Trustee shall so notify the Depositor and
the Depositor 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 that
remain in trust hereunder.
(d) Upon any termination pursuant to the exercise of the purchase
option contained in Section 11.01(a)(ii) 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
will not (i) result in the imposition of Taxes on "prohibited transactions"
of the Trust Fund as described in Section 860F of the Code, or (ii) cause
the Trust Fund to fail to qualify as REMICs at any time that any Certificates
are outstanding:
(i) within 90 days prior to the final Distribution Date set forth
in the notice given by the Servicer or the Depositor under this Section,
the Trustee shall adopt a plan of complete liquidation of the Trust Fund
within the meaning of Section 860F(a)(4) of the Code that, as evidenced
by an Opinion of Counsel (which opinion shall not be an expense of the
Trustee or the Tax Matters Person), meets the requirements of a
qualified liquidation; and
(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 Depositor or the Servicer, as the case may be, for
cash.
By their acceptance of the Certificates, the Holders thereof hereby
authorize the Servicer to prepare and the Trustee to adopt and sign a plan of
complete liquidation.
Section 11.02. Auction Call.
------------
(a) If neither the Depositor nor the Servicer exercises its right
described in Section 11.01(a)(ii) within 90 days after the Distribution Date
on which they are first entitled to do so, the Depositor and the Servicer
shall so notify the Trustee, and the Trustee shall use commercially
reasonable efforts to solicit bids for the purchase of all Contracts and
other property of the Trust Fund from no fewer than two prospective
purchasers that it believes to be Qualified Bidders. If IndyMac is then the
Servicer, the solicitation of bids shall be conditioned upon its continuing
as servicer of the Contracts on terms and conditions substantially similar to
those set forth in this Agreement. The Trustee shall provide the Servicer
with ten days written notice prior to any action pursuant to this Section.
(b) If the Trustee receives bids from at least two Qualified Bidders
and the net proceeds of the highest bid are equal to or greater than the
Termination Price, the Trustee shall promptly advise the Servicer of the
highest bid and the terms of purchase, and the Servicer shall have three
Business Days, at its option, to match the terms of such bid. The Trustee
shall thereafter sell the Contracts and other property of the Trust either
(i) to the Servicer, if it shall so elect, or (ii) to the highest bidder, and
in either case the Trustee shall distribute the net proceeds of such sale in
redemption of the Certificates pursuant to Section 6.01. Any such sale must
also comply with the requirements of Section 11.01(b) and the second to the
last sentence of Section 11.01(a).
(c) Any costs incurred by the Trustee in connection with such sale
(including without limitation any legal opinions or consents required by
Section 11.01(b)) shall be deducted from the bid price of the Contracts and
other property of the Trust in determining the net proceeds therefrom.
(d) If the Trustee does not obtain bids from at least two Qualified
Bidders, or does not receive a bid such that the net proceeds therefrom would
at least equal the Termination Price, it shall not sell the Contracts and
other property of the Trust, and shall thereafter have no obligation to
attempt to sell same.
(e) Each of the Depositor and the Servicer shall cooperate with and
provide necessary information to the Trustee in connection with any auction
sale as described herein.
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
Section 12.01. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms and in no way shall affect the validity or
enforceability of the other covenants, agreements, provisions or terms of
this Agreement or of the Certificates or the rights of the Holders.
Section 12.02. 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
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
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 expressly
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 person 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 of any provision 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 default and of
the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates of a Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25% shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; it being understood
and intended, and being covenanted expressly 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 of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such 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. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.03. Acts of Certificateholders.
--------------------------
(a) Except as otherwise specifically provided herein, whenever
Certificateholder approval, authorization, direction, notice, consent, waiver
or other action is required hereunder, such approval, authorization,
direction, notice, consent, waiver or other action shall be deemed to have
been given or taken on behalf of, and shall be binding upon, all Certificate-
holders if agreed to by Holders of Certificates of the specified Class or
Classes evidencing, as to each such Class, Percentage Interests aggregating
51% or more.
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders
in person or by an agent duly appointed in writing; and except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where required,
to the Servicer. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, the Servicer and the
Depositor if made in the manner provided in this Section.
(c) The fact and date of the execution by any Certificateholder of any
such instrument or writing may be proved in any reasonable manner that the
Trustee deems sufficient.
(d) The ownership of Certificates shall be proved by the Certificate
Registrar.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be
done by the Trustee or the Servicer in reliance thereon, whether or not
notation of such action is made upon such security.
(f) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 12.04. 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 30-day
months and will be carried out to at least three decimal places.
Section 12.05. Amendment. This Agreement may be amended from time to
---------
time by the parties hereto without consent of any Certificateholders, (i) to
cure any ambiguity or to correct or supplement any provisions herein that may
be inconsistent with any other provisions herein, (ii) to add to the duties
or obligations of the Servicer hereunder, (iii) to obtain a rating by a
nationally recognized rating agency or to maintain or improve the
then-current rating of any Class of Certificates (it being understood
that none of the Trustee, the Depositor or the Servicer is obligated
to obtain, maintain or improve any rating of any Class of Certificates after
the Closing Date), (iv) to amend the Principal Distribution Tests or the
calculation of the Average Sixty-Day Delinquency Ratio, the Average
Thirty-Day Delinquency Ratio, Cumulative Realized Losses, Current Realized
Loss Ratio, Sixty-Day Delinquency Ratio or the Thirty-Day Delinquency Ratio
or (v) to make any other provisions with respect to matters or questions
arising under this Agreement that shall not be materially inconsistent with
the provisions of this Agreement, including without limitation provisions
relating to the issuance of Definitive Certificates to Certificate Owners
pursuant to Section 4.03; provided, however, with respect to clause (v), that
such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder
(including, without limitation, the maintenance of the status of the Trust
Fund as REMICs under the Code) and provided further that, in the case of
clause (iv), any such action may be taken only after the Trustee has received
from each Rating Agency a confirmation that such action will not result in
the reduction or withdrawal of any then-current rating of a Certificate.
This Agreement may also be amended from time to time by the parties
hereto without consent of the Certificateholders, to modify, eliminate or add
to the provisions of this Agreement to such extent as shall be necessary to
(i) maintain the qualification of the Trust Fund as REMICs under the Code or
avoid, or minimize the risk of, the imposition of any Tax on the Trust Fund
under the Code that would be a claim against the Trust Fund's assets, or
(ii) prevent the Trust Fund from entering into any "prohibited transaction"
as defined in Section 860F of the Code; provided that in either such case,
(a) there shall have been delivered to the Trustee an Opinion of Counsel to
the effect that such action is necessary or appropriate to maintain such
qualification or avoid any such Tax or minimize the risk of its imposition or
prevent the Trust Fund from entering into such prohibited transaction, as the
case may be, and (b) such amendment shall not adversely affect in any
material respect the interests of any Certificateholder.
This Agreement also may be amended from time to time by the parties
hereto with the consent of the Holders of each Class of Certificates affected
thereby evidencing, as to each such Class, Percentage Interests aggregating
not less than 66%, 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, distributions that are required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii)
reduce the aforesaid percentage 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 or (iii) adversely affect the
status of the Trust Fund as REMICs or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions.
Prior to executing any amendment to this Agreement, the Trustee shall be
entitled to receive an Opinion of Counsel stating that such amendment is
permitted by the terms of this Agreement. Promptly after the execution of
any such amendment the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder and the Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 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.
Section 12.06. Recordation of Agreement. To the extent permitted by
------------------------
applicable law, 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
with the consent of the Trustee accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the
interests of the Certificateholders or is necessary for the administration or
servicing of the Contracts.
Section 12.07. Certificates Nonassessable and Fully Paid. The
-----------------------------------------
interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and upon
authentication of a Certificate by the Trustee or its Authenticating Agent,
such Certificate shall be deemed fully paid.
Section 12.08. No Petition. Each of the Seller, the Servicer and the
-----------
Trustee covenants and agrees that prior to the date that is one year and one
day after the date upon which the last Class of Certificates has been paid in
full, it will not institute against, or join any other Person in instituting
against the Depositor any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. This Section shall survive termination of this
Agreement or the termination of the Servicer or the Trustee, as the case may
be, under this Agreement.
SECTION 12.09. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 12.10. Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at, or telecopied (with transmission confirmed by
telephone) to, or mailed by first class or registered mail, postage prepaid,
to in the case of (i) the Depositor, Credit Suisse First Boston Mortgage
Securities Corp., c/o Credit Suisse First Boston Corporation, 11 Madison
Avenue, New York, New York 10010; (ii) the Servicer, IndyMac, Inc., 15050
Avenue of Science, Suite 101, San Diego, California 92128, Attention:
General Counsel; (iii) the Trustee, The Bank of New York, 101 Barclay
Street, New York, New York 10286 Attention: Corporate Trust - MBS
Administration; (iv) Moody's, 99 Church Street, New York, New York
10004, Attention: Asset Backed Monitoring; (v) Fitch, One State Street
Plaza, New York, New York 10004, Attention: Residential Mortgage Group;
or (vi) in any such case at such other address specified in writing to
each other entity listed in this Section.
Section 12.11. Merger and Integration of Documents. Except as
-----------------------------------
specifically stated otherwise herein, this Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement.
This Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 12.12. Headings. The headings herein and Table of Contents are
--------
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section 12.13. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
as Depositor
By:
------------------------------------------------
Name:
Title:
INDYMAC, INC., as Seller and Servicer
By:
------------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
----------------------------------------------
Name:
Title:
State of New York )
) ss.:
County of New York )
On the ____ day of March, 1998 before me, a notary public in and for
said State, personally appeared __________, known to me to be __________ of
Credit Suisse First Boston Mortgage Securities Corp., one of the corporations
that executed the within instrument, and also known to me to be the person
who executed it on behalf of said corporation, and acknowledged to me that
such corporation 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.
--------------------------------------------
Notary Public
(Notarial Seal)
State of __________ )
) ss.:
County of __________ )
On the ____ day of March, 1998 before me, a notary public in and for
said State, personally appeared __________, known to me to be a __________ of
IndyMac, Inc., one of the corporations that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation 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.
---------------------------------------
Notary Public
(Notarial Seal)
State of New York )
) ss.:
County of New York )
On the ____ day of March, 1998 before me, a notary public in and for
said State, personally appeared _________________, known to me to be a Trust
Officer of The Bank of New York, a national banking association that executed
the within instrument, and also known to be the person who executed it on
behalf of said national association, and acknowledged to me that such
corporation 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.
---------------------------------------
Notary Public
(Notarial Seal)
EXHIBIT A
CONTRACT SCHEDULE
(On file with the Trustee)
EXHIBIT B
FORM OF FACE OF CLASS A 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.)
Number A-___ Class A-(1)(2)(3)(4)(5)
Date of Pooling and Servicing Original Denomination:
Agreement and Cut-off Date: $____________________
March 1, 1998
Class A-__ Initial Certificate
Class A-_ Pass-Through Rate: Principal Balance:
____%, computed on the basis a $____________________
360-day year (and the actual
number of days in the applicable Final Distribution Date: (March
Interest Accrual Period) 25, 1999) (September 25, 2028)
(consisting of twelve 30-day
months). CUSIP ________________
First Distribution Date: April
27, 1998
INDYMAC MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 1998-1, CLASS A(-1)(-2)(-3)(-4)(-5)
evidencing a percentage interest in any
distributions allocable to the Class A
Certificates with respect to a pool of fixed
rate conventional manufactured housing
installment sales contracts and installment
loans sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
which manufactured housing installment sales
contracts and installment loans either were
originated or acquired by and are initially
serviced by IndyMac, Inc. (the "Seller" and the
"Servicer").
This Certificate does not represent an obligation of or interest in
Credit Suisse First Boston Mortgage Securities Corp., the Seller, the
Servicer, the Trustee referred to below or any of their respective
Affiliates.
Neither this Certificate nor the underlying manufactured housing
installment sales contracts and installment loans are guaranteed or insured
by Credit Suisse First Boston Mortgage Securities Corp., the Seller, the
Servicer, the Trustee, any of their respective Affiliates or by any
governmental agency or instrumentality.
THE PORTION OF THE CLASS A-__ INITIAL CERTIFICATE PRINCIPAL BALANCE
EVIDENCED BY THIS CERTIFICATE (THE "CERTIFICATE BALANCE") WILL BE REDUCED BY
DISTRIBUTIONS ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THIS CERTIFICATE, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL
DENOMINATION SHOWN ABOVE. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
This certifies that ___________________ is the registered owner of an
undivided interest in certain monthly distributions with respect to a pool
(the "Contract Pool") of conventional manufactured housing installment sales
contracts and installment loan agreements (collectively, the "Contracts")
sold, together with certain other property (collectively, the "Trust Fund"),
by Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor").
The Contracts either were originated or acquired by and are serviced by
IndyMac, Inc. (the "Seller" and the "Servicer") and are secured by
Manufactured Homes. The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the date specified above (the "Agreement"),
among the Depositor, the Seller, the Servicer and The Bank of New York, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as IndyMac Manufactured Housing Contract Pass-Through
Certificates, Series 1998-1 (the "Certificates") and 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.
On each Distribution Date, to the extent described in the Agreement, the
Trustee will cause to be distributed from funds in the Certificate Account to
each Class A Certificateholder an amount equal to the product of the
Percentage Interest evidenced by such Class A Certificateholder's Certificate
and the Class A-__ Distribution Amount to be distributed to such Class of
Class A Certificates.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear
on the Certificate Register or by wire transfer to Holders of Class A
Certificates with original denominations aggregating at least $5 million who
have given the Trustee written instructions at least five Business Days prior
to the related Record Date. Notwithstanding the foregoing, the final
distribution on this Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency appointed by the Trustee for that
purpose and specified in such notice of final distribution.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
THE BANK OF NEW YORK
By:
-----------------------------------
Authorized Officer
(Form of Certificate of Authentication)
This is one of the Certificates referred to in the within-mentioned
Agreement.
<TABLE>
<CAPTION>
<S> <C> <C>
By: By: THE BANK OF NEW YORK,
Authenticating Agent as Trustee
</TABLE>
or
Authorized Signatory Authorized Signatory
EXHIBIT C
FORM OF FACE OF CLASS B CERTIFICATE
(SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE.)
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M CERTIFICATES (AND THE CLASS B-1 CERTIFICATES) TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
(FOR CLASS B-2 CERTIFICATES: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN
TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER
APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF
ARTICLE FOUR OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.)
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS A REPRESENTATION LETTER TO THE TRUSTEE TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE
COMPANY, THAT THE PURCHASER IS AN INSURANCE COMPANY THAT IS PURCHASING SUCH
CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT"
(AS SUCH TERM IS DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60")) AND THAT THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES ARE COVERED UNDER PTCE 95-60 OR DELIVERS TO THE TRUSTEE AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN,
ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE
BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
Number B-___ Class B-(1)(2)
Date of Pooling and Servicing Original Denomination:
Agreement and Cut-off Date: March $____________________
1, 1998
Class B-(1)(2) Initial Certificate
Class B-(1)(2) Pass-Through Rate: Principal Balance:
lesser of ____%, computed on the $____________________
basis of a 360-day year of twelve
30-day months, and the Weighted Final Distribution Date:
Average Net Contract Rate September 25, 2028
First Distribution Date: April CUSIP ________________
27, 1998
INDYMAC MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 1998-1, CLASS B-(1)(2)
evidencing a percentage interest in any
distributions allocable to the Class B
Certificates with respect to a pool of fixed
rate conventional manufactured housing
installment sales contracts and installment
loans formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
which manufactured housing installment sales contracts and installment loans
either were originated or acquired by and are initially serviced by IndyMac,
Inc. (the "Seller" and the "Servicer").
This Certificate does not represent an obligation of or interest in
Credit Suisse First Boston Mortgage Securities Corp., the Seller, the
Servicer, the Trustee referred to below or any of their respective
Affiliates.
Neither this Certificate nor the underlying manufactured housing
contracts and loans are guaranteed or insured by Credit Suisse First Boston
Mortgage Securities Corp., the Seller, the Servicer, the Trustee, any of
their respective Affiliates or by any governmental agency or instrumentality.
THE PORTION OF THE CLASS B-(1)(2) INITIAL CERTIFICATE PRINCIPAL BALANCE
EVIDENCED BY THIS CERTIFICATE (THE "CERTIFICATE BALANCE") WILL BE REDUCED BY
DISTRIBUTIONS ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THIS CERTIFICATE, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
ORIGINAL DENOMINATION SHOWN ABOVE. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
This certifies that ___________________ is the registered owner of an
undivided interest in certain monthly distributions with respect to a pool
(the "Contract Pool") of conventional manufactured housing installment sales
contracts and installment loan agreements (collectively, the "Contracts")
formed and sold, together with certain other property (collectively, the
"Trust Fund"), by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Contracts either were originated or acquired by and are
serviced by IndyMac, Inc. (the "Seller" and the "Servicer") and are secured
by Manufactured Homes. The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the date specified above (the "Agreement"),
among the Depositor, the Seller, the Servicer and The Bank of New York, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as IndyMac Manufactured Housing Contract Pass-Through
Certificates, Series 1998-1 (the "Certificates") and 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.
On each Distribution Date, to the extent described in the Agreement, the
Trustee will cause to be distributed from funds in the Certificate Account,
to each Class B Certificateholder an amount equal to the product of the
Percentage Interest evidenced by such Class B Certificateholder's Certificate
and the Class B-(1)(2) Distribution Amount. Payments in respect of the Class
B Certificates are subordinated to payments in respect of the Class A
Certificates and the Class M Certificates and payments in respect of the
Class B-2 Certificates are subordinated to payments in respect of the Class
B-1 Certificates, in each case to the extent specified in the Agreement.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear
on the Certificate Register or by wire transfer to Holders of Class B
Certificates with original denominations aggregating at least $5 million who
have given the Trustee written instructions at least five Business Days prior
to the related Record Date. Notwithstanding the foregoing, the final
distribution on this Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency appointed by the Trustee for that
purpose and specified in such notice of final distribution.
(UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.)
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: THE BANK OF NEW YORK
By:
---------------------------------
Authorized Officer
(Form of Certificate of Authentication)
This is one of the Certificates referred to in the within-mentioned
Agreement.
By: By: THE BANK OF NEW YORK,
Authenticating Agent as Trustee
or
Authorized Signatory Authorized Signatory
EXHIBIT D
FORM OF REVERSE OF CERTIFICATES
As provided in the Agreement, deductions and withdrawals from the
Collection Account will be made from time to time for purposes other than
distributions to Certificateholders, such purposes including payment of the
Monthly Servicing Fee, reimbursement to the Servicer for certain expenses
incurred by it and reimbursement to the Servicer for previous Advances with
respect to certain delinquent payments on the Contracts.
The Trustee will cause to be kept at its Corporate Trust Office in New
York, New York, or at the office of its designated agent, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee will provide for the registration of Certificates and
of transfers and exchanges of Certificates. Upon surrender for registration
of transfer of any Certificate at any office or agency of the Trustee
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the
designated transferee or transferees, a Certificate dated the date of
authentication by the Trustee.
No service charge will be made to the Holder for any transfer or
exchange of the Certificate, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Certificate. Prior to due
presentation of a Certificate for registration of transfer, the Depositor,
the Servicer and the Trustee may treat the person in whose name any
Certificate is registered as the owner of such Certificate and the Percentage
Interest in the Trust Fund evidenced thereby for the purpose of receiving
distributions pursuant to the Agreement and for all other purposes
whatsoever, and neither the Depositor, the Servicer nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, without the consent of any of the
Certificateholders, (i) to cure any ambiguity or to correct or supplement any
provisions therein that may be inconsistent with any other provisions
therein, (ii) to add to the duties or obligations of the Servicer under the
Agreement, (iii) to obtain a rating by a nationally recognized rating agency
or to maintain or improve the rating of any Class of Certificates then given
by a rating agency (it being understood that none of the Trustee, the
Depositor, the Seller or the Servicer is obligated to obtain, maintain or
improve any rating of any Class of Certificates after the Closing Date), (iv)
to amend certain tests or definitions or (v) to make any other provisions
with respect to matters or questions arising under the Agreement that are not
materially inconsistent with the provisions of the Agreement, including
without limitation, provisions relating to the issuance of definitive
Certificates to Certificate Owners; provided, however, with respect to clause
(v), that any such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any
Certificateholder (including, without limitation, the maintenance of the
status of the Trust Fund as REMICs under the Code) and provided further,
that in the case of clause (iv), any such action may be taken only after
the Trustee has received from each Rating Agency a confirmation that such
action will not result in the reduction or withdrawal of any then-current
rating of a Certificate. The Agreement may also be amended from time to
time by the Depositor, the Servicer and the Trustee, without consent of the
Certificateholders, to modify, eliminate or add to the provisions of the
Agreement to such extent as shall be necessary to maintain the qualification
of the Trust Fund as REMICs under the Code or avoid, or minimize the risk of,
the imposition of any Tax on the Trust Fund, unless certain conditions in
the Agreement have been complied with, or to prevent the Trust Fund from
entering into certain prohibited transactions under the Code, provided that
such amendment shall not adversely affect in any material respect the
interests of any Certificateholder and there shall have been delivered to the
Trustee an Opinion of Counsel to the effect that such action is necessary or
appropriate for such purposes.
The Agreement may also be amended from time to time by the Depositor,
the Seller, the Servicer and the Trustee with the consent of the Holders of
Certificates of each Class affected thereby evidencing, as to each such
Class, Percentage Interests aggregating not less than 66%, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, distributions
required to be made on any Certificate without the consent of the Holder of
such Certificate, (ii) reduce the aforesaid percentage of Certificates of a
Class the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding or (iii) adversely affect the status of the Trust Fund as REMICs
or cause a Tax to be imposed on the Trust Fund under the REMIC provisions.
The respective obligations and responsibilities of the Depositor, the
Seller, the Servicer and the Trustee under the Agreement will terminate upon:
(i) the later of 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 thereunder, (ii) at the option of the Depositor or the Servicer, on any
Distribution Date after the first Distribution Date on which the Pool Balance
was less than 10% of the Cut-off Date Pool Balance, so long as the Depositor
or the Servicer, as the case may be, deposits in the Certificate Account the
repurchase price specified in the Agreement or (iii) upon the sale of the
Contracts and other property of the Trust Fund by the Trustee if neither the
Depositor nor the Servicer exercises the option in clause (ii) within 90 days
after the Distribution Date on which they are first entitled to do so, as
specified in the Agreement.
EXHIBIT E
FORM OF FACE OF CLASS M CERTIFICATE
(SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE.)
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS A REPRESENTATION LETTER TO THE TRUSTEE TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE
COMPANY, THAT THE PURCHASER IS AN INSURANCE COMPANY THAT IS PURCHASING SUCH
CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT"
(AS SUCH TERM IS DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60")) AND THAT THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES ARE COVERED UNDER PTCE 95-60 OR DELIVERS TO THE TRUSTEE AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN,
ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE
BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
Number M-1 Class M
Date of Pooling and Servicing Original Denomination:
Agreement and Cut-off Date: March $11,699,000
1, 1998
Class M Initial Certificate
Class M Pass-Through Rate: lesser Principal Balance: $11,699,000
of 7.1100%, computed on the basis
of a 360-day year of twelve 30 day Final Distribution Date:
months, or the Weighted Average September 25, 2028
Net Contract Rate
CUSIP 22540A FK9
First Distribution Date: April
27, 1998
INDYMAC MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 1998-1, CLASS M
evidencing a percentage interest in any distri-
butions allocable to the Class M Certificates
with respect to a pool of fixed rate
conventional manufactured housing installment
sales contracts and installment loans formed
and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
which manufactured housing installment sales contracts and installment loans
either were originated or acquired by and are initially serviced by IndyMac,
Inc. (the "Seller" and the "Servicer").
This Certificate does not represent an obligation of or interest in
Credit Suisse First Boston Mortgage Securities Corp., the Seller, the
Servicer, the Trustee referred to below or any of their respective
Affiliates.
Neither this Certificate nor the underlying manufactured housing
contracts and loans are guaranteed or insured by Credit Suisse First Boston
Mortgage Securities Corp., the Seller, the Servicer, the Trustee, any of
their respective Affiliates or by any governmental agency or instrumentality.
THE PORTION OF THE CLASS M INITIAL CERTIFICATE PRINCIPAL BALANCE
EVIDENCED BY THIS CERTIFICATE (THE "CERTIFICATE BALANCE") WILL BE REDUCED BY
DISTRIBUTIONS ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THIS CERTIFICATE, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL
DENOMINATION SHOWN ABOVE. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
This certifies that ___________________ is the registered owner of an
undivided interest in certain monthly distributions with respect to a pool
(the "Contract Pool") of conventional manufactured housing installment sales
contracts and installment loan agreements (collectively, the "Contracts")
formed and sold, together with certain other property (collectively, the
"Trust Fund"), by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Contracts either were originated or acquired by and are
serviced by IndyMac, Inc. (the "Seller" and the "Servicer") and
are secured by Manufactured Homes. The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of the date specified above
(the "Agreement"), among the Depositor, the Seller, the Servicer and The
Bank of New York, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed
thereto in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as IndyMac Manufactured Housing Contract Pass-Through
Certificates, Series 1998-1 (the "Certificates") and 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.
On each Distribution Date, to the extent described in the Agreement, the
Trustee will cause to be distributed from funds in the Certificate Account to
each Class M Certificateholder an amount equal to the product of the
Percentage Interest evidenced by such Class M Certificateholder's Certificate
and the Class M Distribution Amount. Payments in respect of the Class M
Certificates are subordinated to payments in respect of the Class A
Certificates to the extent specified in the Agreement.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear
on the Certificate Register or by wire transfer to Holders of Class M
Certificates with original denominations aggregating at least $5 million who
have given the Trustee written instructions at least five Business Days prior
to the related Record Date. Notwithstanding the foregoing, the final
distribution on this Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency appointed by the Trustee for that
purpose and specified in such notice of final distribution.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: THE BANK OF NEW YORK
By:
-------------------------------
Authorized Officer
(Form of Certificate of Authentication)
This is one of the Certificates referred to in the within-mentioned
Agreement.
By: By: THE BANK OF NEW YORK,
Authenticating Agent as Trustee
or
Authorized Signatory Authorized Signatory
EXHIBIT F
FORM OF FACE OF CLASS A-R CERTIFICATE
(THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST"
ISSUED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY
NOT BE TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY
THE TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.)
THE SMALL BUSINESS JOB PROTECTION ACT OF 1996, AS PART OF THE REPEAL OF
THE BAD DEBT RESERVE METHOD FOR THRIFT INSTITUTIONS, REPEALED THE APPLICATION
OF CODE SECTION 593(d) TO ANY TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1995.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
THE BENEFICIAL OWNERSHIP OF TWO "RESIDUAL INTERESTS" ISSUED BY TWO SEPARATE
"REAL ESTATE MORTGAGE INVESTMENT CONDUITS" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE. THIS
CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE (AS DEFINED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH TRANSFER
MUST ALSO SATISFY THE OTHER REQUIREMENTS OF SECTIONS 4.02 AND 4.09 OF SUCH
POOLING AND SERVICING AGREEMENT.
Number R-__ Class A-R
Date of Pooling and Servicing Original Denomination: $100
Agreement and Cut-off Date: March
1, 1998 Class A-R Initial Certificate
Principal Balance: $100
Class A-R Pass-Through Rate:
6.5000%, computed on the basis of Final Distribution Date:
a 360-day year of twelve 30-day September 25, 1998
months.
First Distribution Date: April
27, 1998
Percentage Interest: ___%
INDYMAC MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 1998-1, CLASS A-R
evidencing a percentage interest in any
distributions allocable to the Class A-R
Certificates with respect to a pool of fixed
rate conventional manufactured housing
installment sales contracts and installment
loans formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
which manufactured housing installment sales contracts and installment loans
either were originated or acquired by and are initially serviced by IndyMac,
Inc. (the "Seller" and the "Servicer").
This Certificate does not represent an obligation of or interest in
Credit Suisse First Boston Mortgage Securities Corp., the Seller, the
Servicer or the Trustee referred to below or any of their Affiliates.
Neither this Certificate nor the underlying manufactured housing
contracts are guaranteed or insured by Credit Suisse First Boston Mortgage
Securities Corp., the Seller, the Servicer, the Trustee, any of their
respective Affiliates or by any governmental agency or instrumentality.
This certifies that ______________ is the registered owner of an
undivided interest in certain monthly distributions with respect to a pool
(the "Contract Pool") of conventional manufactured housing installment sales
contracts and installment loan agreements (the "Contracts") formed and sold,
together with certain other property (collectively, the "Trust Fund"), by
Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor"). The
Contracts either were originated or acquired by and are serviced by IndyMac,
Inc. and are secured by Manufactured Homes. The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the date specified
above (the "Agreement"), among the Depositor, the Seller, the Servicer and
The Bank of New York, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed
thereto in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as IndyMac Manufactured Housing Contract Pass-Through
Certificates, Series 1998-1 (the "Certificates") and 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.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear
on the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency appointed by the Trustee for that
purpose and specified in such notice of final distribution.
The holder of this Class A-R Certificate, by acceptance hereof, agrees
that, in accordance with the requirements of Section 860D(b)(1) of the Code,
the federal tax return of the Trust for its first taxable year shall provide
that the Trust elects to be treated as "real estate mortgage investment
conduits" ("REMICs") under the Code for such taxable year and all subsequent
taxable years. The Class A, Class M, Class B and Class X Certificates shall
be "regular interests" in the REMICs and the Class A-R Certificates shall be
the "residual interests" in the REMICs. In addition, the holder of this
Class A-R Certificate, by acceptance hereof, (i) agrees to file tax returns
consistent with and in accordance with any elections, decisions or other
reports made or filed with regard to federal, state or local taxes on behalf
of the Trust, (ii) agrees to cooperate with the Servicer in connection with
examinations of the Trust's affairs by tax authorities, including
administrative and judicial proceedings and (iii) makes the additional
agreements, designations and appointments, and undertakes the
responsibilities, set forth in Section 4.09 of the Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: THE BANK OF NEW YORK
By:
-------------------------------
Authorized Officer
(Form of Certificate of Authentication)
This is one of the Certificates referred to in the within-mentioned
Agreement.
By: By: THE BANK OF NEW YORK,
Authenticating Agent as Trustee
or
Authorized Signatory Authorized Signatory
EXHIBIT G
FORM OF FACE OF CLASS X CERTIFICATE
(SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS BENEFICIAL OWNERSHIP OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE
ISSUE DATE OF THIS CERTIFICATE IS MARCH 13, 1998. THE INITIAL PER ANNUM RATE
OF INTEREST ON THIS CERTIFICATE IS INTEREST ACCRUING ON INTERESTS ISSUED BY
THE POOLING REMIC IN EXCESS OF THE RATES STATED IN THE POOLING AND SERVICING
AGREEMENT. ASSUMING THAT PRINCIPAL PAYMENTS ARE MADE ON THE CONTRACTS
UNDERLYING THE CERTIFICATES AT A CONSTANT ANNUAL PREPAYMENT RATE OF 180% OF
THE PREPAYMENT MODEL, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$_________ OF OID PER $100,000 OF INITIAL NOTIONAL PRINCIPAL AMOUNT, THE
YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL
SHORT ACCRUAL PERIOD IS NO MORE THAN $_______ PER $100,000 OF INITIAL
NOTIONAL PRINCIPAL AMOUNT, ASSUMING THE YIELD IS ACCRUED ON A DAILY BASIS
DURING THE INITIAL PERIOD. NO REPRESENTATION IS MADE AS TO THE RATE AT WHICH
PRINCIPAL PAYMENTS WILL BE MADE ON THE CONTRACTS.)
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS B CERTIFICATES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THE SMALL BUSINESS JOB PROTECTION ACT OF 1996, AS PART OF THE REPEAL OF
THE BAD DEBT RESERVE METHOD FOR THRIFT INSTITUTIONS,
<PAGE>
REPEALED THE APPLICATION OF CODE SECTION 593(d) TO ANY TAXABLE YEAR BEGINNING
AFTER DECEMBER 31, 1995.
Number X-1 Class X
Date of Pooling and Servicing Percentage Interest: 100%
Agreement and Cut-off Date: March
1, 1998 Final Distribution Date:
September 25, 2028
First Distribution Date: April
27, 1998
INDYMAC MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 1998-1, CLASS X
evidencing a percentage interest in any
distributions allocable to the Class X
Certificates with respect to a pool of fixed
rate conventional manufactured housing
installment sales contracts and installment
loans formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
which manufactured housing installment sales contracts and installment loans
either were originated or acquired by and are initially serviced by IndyMac,
Inc. (the "Seller" and the "Servicer").
This Certificate does not represent an obligation of or interest in
Credit Suisse First Boston Mortgage Securities Corp., the Seller, the
Servicer or the Trustee referred to below or any of their Affiliates.
Neither this Certificate nor the underlying manufactured housing
contracts are guaranteed or insured by Credit Suisse First Boston Mortgage
Securities Corp., the Seller, the Servicer, the Trustee, any of their
respective Affiliates or by any governmental agency or instrumentality.
This certifies that ______________________________ is the registered
owner of an undivided interest in certain monthly distributions with respect
to a pool (the "Contract Pool") of conventional manufactured housing
installment sales contracts and installment loan agreements (the "Contracts")
formed and sold, together with certain other property (collectively, the
"Trust Fund"), by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Contracts either were originated or acquired by and are
serviced by IndyMac, Inc. and are secured by Manufactured Homes. The
Trust Fund was created pursuant to a Pooling and Servicing Agreement dated
as of the date specified above (the "Agreement"), among the Depositor,
the Seller, the Servicer and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which
is set forth hereafter. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as IndyMac Manufactured Housing Contract Pass-Through
Certificates, Series 1998-1 (the "Certificates") and 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.
On each Distribution Date, to the extent described in the Agreement, the
Trustee will cause to be distributed from funds in the Certificate Account to
each Class X Certificateholder an amount equal to the product of the
Percentage Interest evidenced by such Class X Certificateholder's Certificate
and the Class X Distribution Amount. Payments in respect of the Class X
Certificates are subordinated to payments in respect of the Class A, Class M
and Class B Certificates to the extent specified in the Agreement.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear
on the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency appointed by the Trustee for that
purpose and specified in such notice of final distribution.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: THE BANK OF NEW YORK
By:
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Authorized Officer
(Form of Certificate of Authentication)
This is one of the Certificates referred to in the within-mentioned
Agreement.
By: By: THE BANK OF NEW YORK,
Authenticating Agent as Trustee
or
Authorized Signatory Authorized Signatory
EXHIBIT H
(RESERVED)
EXHIBIT I
FORM OF CERTIFICATE ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF
ASSIGNEE) (*This information, which is voluntary, is being requested to
ensure that the assignee will not be subject to backup withholding under
Section 3406 of the Code.)
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(Please Print or Typewrite Name and Address of Assignee)
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the within Certificate, and all rights thereunder, and hereby does
irrevocably constitute and appoint
Attorney to transfer the within
- ---------------------------------------------
Certificate on the books kept for the registration thereof, with full power
of substitution in the premises.
Dated:
(Signature guaranty)
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NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face
of the within Certificate in every particular,
without alteration or enlargement or any change
whatever.
EXHIBIT J
CERTIFICATE OF SERVICING OFFICER
The undersigned certifies that he is a _______ of IndyMac, Inc. (the
"Seller" and the "Servicer") and that as such he is duly authorized to
execute and deliver this certificate on behalf of the Servicer pursuant to
Section 7.02 of the Pooling and Servicing Agreement, dated as of March 1,
1998 (the "Agreement"), among Credit Suisse First Boston Mortgage Securities
Corp., the Seller, the Servicer and The Bank of New York, as trustee, and
further certifies that:
1. The Monthly Report for the period from ____________ to
_____________ attached to this certificate is complete and accurate in
accordance with the requirements of Sections 7.01 and 7.02 of the
Agreement; and
2. As of the date hereof, no Event of Default or event that with
notice or lapse of time or both would become an Event of Default has
occurred.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____ day
of _____________, 19___.
INDYMAC, INC.
By:
-----------------------------------
Name:
Title:
EXHIBIT K
TRANSFER AFFIDAVIT
State of _______________ )
) ss:
County ________________ )
The undersigned, being first duly sworn, deposes and says as follows:
(A) The undersigned is an officer of _____________________, a
corporation duly organized and existing under the laws of the State of
__________, which is the proposed transferee (the "Transferee") of the
IndyMac Manufactured Housing Contract Pass-Through Certificates, Series
1998-1, Class A-R (the "Class A-R Certificates") issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 1998 (the "Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., IndyMac, Inc.,
and The Bank of New York, as trustee. Capitalized terms used, but not
defined herein or in Schedule I 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.
(B) 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
the Class A-R Certificates 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.
(C) The Transferee has been advised of, and understands that (i) a tax
shall be imposed on Transfers of the Class A-R Certificates to Persons that
are not Permitted Transferees; (ii) such tax is 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.
(D) The Transferee has been advised of, and understands that a tax
shall be imposed on a "pass-through entity" holding Class A-R Certificates 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 no tax will be imposed for any
period for which the record holder furnishes to the pass-through entity an
affidavit stating that the 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, 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.)
(E) Transferee has reviewed the provisions of Section 4.09 of the
Agreement (attached hereto as Schedule I and incorporated herein by
reference) and understands the legal consequences of the acquisition of the
Class A-R Certificates 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
comply with the provisions of Sections 4.02 and 4.09 of the Agreement. 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.
(F) The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer the Class A-R Certificates
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 the
Class A-R Certificate or cause any Class A-R Certificates to be Transferred
to any Person that the Transferee knows is not a Permitted Transferee.
(G) The Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds the Residual Interest in connection with the conduct of a
trade or business in the United States and has furnished the transferor and
the Trustee with an effective Internal Revenue Service Form 4224 or successor
form at the time and in the manner required by the Code or (iii) is a
Non-U.S. Person that has delivered to both the transferor and the Trustee an
opinion of a nationally recognized tax counsel to the effect that the
transfer of the Class A-R Certificates to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Residual Interest will not be disregarded for federal
income tax purposes. "Non-U.S. Person" means an individual, corporation,
partnership or other person other than 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 that is subject to U.S. federal income tax regardless of
the source of its income.
(H) The Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be
paid with respect to such Class A-R Certificates, and the Purchaser hereby
acknowledges that the Class A-R Certificates may generate tax liabilities in
excess of the cash flow associated with the Class A-R Certificates and
intends to pay such taxes associated with the Class A-R Certificates when
they become due.
(I) The Transferee:
(i) is not a Benefit Plan, a trustee of a Benefit Plan or a person
acting on behalf of a Benefit Plan or acquiring the Class A-R
Certificates with the assets of a Benefit Plan (The Transferee may
delete this representation if it can make the representation in (ii) or
if it delivers the opinion required under Section 4.02(c)(A)(ii) of the
Agreement); or
(ii) is an insurance company that is purchasing the Class A-R
Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption ("PTCE") 95-60) and the purchase and holding
of the Class A-R Certificates is covered under Sections I and III of
PTCE 95-60 (The Transferee may delete this representation if it can make
the representation in (i), delivers the opinion required under Section
4.02(c)(A)(ii) of the Agreement, or is not an insurance company).
(J) The Transferee's taxpayer identification number is
_______________________.
* * *
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 March, 1998.
______________
By:
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Name:
Title:
(Corporate Seal)
ATTEST:
By:
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Name:
Title:
On this day, 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 March, 1998.
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NOTARY PUBLIC
My commission expires the ___
day of ________, ____.
EXHIBIT L
FORM OF INVESTMENT LETTER OF HOLDER OF
CLASS (X)(B-2) CERTIFICATES
1. The Purchaser is acquiring the Class (X)(B-2) Certificates as
principal for its own account for the purpose of investment (neither the
Underwriters nor any of their respective Affiliates need represent that they
are acquiring for purposes of investment) and not with a view to or for sale
in connection with any distribution thereof, subject nevertheless to any
requirement of law that the disposition of the Purchaser's property shall at
all times be and remain within its control.
2. The Purchaser has knowledge and experience in financial and
business matters and is capable of evaluating the merits and risks of its
investment in the Class (X)(B-2) Certificates and is able to bear the
economic risk of such investment. The Purchaser is an "accredited investor"
within the meaning of Rule 501(a) under the rules and regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as
amended. The Purchaser has been given such information concerning the Class
(X)(B-2) Certificates, the underlying Contracts and the Servicer as it has
requested.
3. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale by the Purchaser of
the Class (X)(B-2) Certificates.
4. The Purchaser understands that the Class (X)(B-2) Certificates has
not been and will not be registered under the Securities Act of 1933, as
amended, or any state securities laws and may be resold (which resale is not
currently contemplated) only if an exemption from registration is available,
that neither the Depositor, the Seller, the Servicer nor the Trustee is
required to register the Class (X)(B-2) Certificates and that any transfer
must comply with Sections 4.02 and 4.09 of the Pooling and Servicing
Agreement. In connection with any resale of the Class A-R Certificates, the
Purchaser shall not make any general solicitation or advertisement.
5. The Purchaser agrees that it will obtain from any purchaser of the
Class (X)(B-2) Certificates from it the same representations, warranties and
agreements contained in paragraphs 1 through 5.
6. The Purchaser hereby directs the Trustee to register the Class
(X)(B-2) Certificates acquired by the Purchaser in the name of its nominee as
follows: ___________________________.
Very truly yours,
By:
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Name:
Title:
