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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)
May 29, 1996
Cargill Financial Services Corporation
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(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Delaware 33-96500
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
</TABLE>
55343-9497
Attention: Phillip M. Fantle, Esq. (Zip Code)
6000 Clearwater Drive
Minnetonka, Minnesota
(Address of Principal
Executive Offices)
Registrant's telephone number, including area code (612) 984-3444
No Change
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(Former name or former address, if changed since last report)
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Item 5. Other Events
Description of the Certificates and the Mortgage Loans
Cargill Financial Services Corporation ("CFSC") registered
issuances of up to $1,000,000,000 principal amount of mortgage loan (including
manufactured housing loan) asset-backed securities on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the
"Act"), by a Registration Statement on Form S-3 (Registration File No. 33-96500)
(as amended, the "Registration Statement"). Pursuant to the Registration
Statement, CFSC as sponsor of the Access Financial Manufactured Housing Contract
Trust 1996-1 (the "Trust") issued approximately $149,977,000 in aggregate
principal amount of its Manufactured Housing Contract Senior/Subordinate
Pass-Through Certificates, Series 1996-1 (the "Offered Certificates"), on May
29, 1996. This Current Report on Form 8-K is being filed to satisfy an
undertaking to file copies of certain agreements executed in connection with the
issuance of the Certificates, the forms of which were filed as Exhibits to the
Registration Statement.
The Certificates were issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") attached hereto as
Exhibit 4.1(a), dated as of May 1, 1996, among Cargill Financial Services
Corporation, as sponsor (the "Sponsor"), Access Financial Receivables Corp., as
seller (the "Seller"), Access Financial Corp., as servicer, and The Bank of New
York, as trustee (the "Trustee"). The certificates issued by the Trust consist
of five classes of senior certificates designated as the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-4
Certificates and the Class A-5 Certificates (collectively the "Senior
Certificates") and four classes of subordinate certificates designated as the
Class A-6 Certificates, the Class B-1 Certificates, the Class B-2 Certificates
and the Class C Certificates. The Trust issued two classes of residual
certificates. Only the Senior Certificates, the Class A-6 Certificates and the
B-1 Certificates were issued pursuant to the Registration Statement, and they
constitute the Offered Certificates. The Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the Class
A-5 Certificates, the Class A-6 Certificates, the Class B-1 Certificates and the
Class B-2 Certificates evidence in the aggregate initial undivided interests in
the pool of contracts comprising the Trust of approximately 20.71%, 16.27%,
14.73%, 7.48%, 14.68%, 7.88%, 10.84% and 5.91%, respectively, based on their
original certificate balance. The Class C Certificates are "interest-only"
certificates and do not have a certificate principal balance.
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The assets of the Trust consist primarily of a pool of
actuarial manufactured housing installment sales contracts and installment loan
agreements (the "Contracts") and certain related property held by the Trust.
Interest distributions on the Offered Certificates are based
on the certificate principal balance thereof and the then applicable remittance
rate thereof. The remittance rate for the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the Class
A-5 Certificates, the Class A-6 Certificates and the Class B-1 Certificates is
6.400%, 6.750%, 6.975%, 7.300%, 7.575%, 7.975% and 8.040% per annum,
respectively.
The Class A-1 Certificates have an aggregate principal amount
of $33,544,000, the Class A-2 Certificates have an aggregate principal amount of
$26,360,000, the Class A-3 Certificates have an aggregate principal amount of
$23,862,000, the Class A-4 Certificates have an aggregate principal amount of
$12,115,000, the Class A-5 Certificates have an aggregate principal amount of
$23,781,000, the Class A-6 Certificates have an aggregate principal amount of
$12,764,000 and the Class B-1 Certificates have an aggregate principal amount of
$17,551,000.
As of the May 29, 1996 closing date, the Contracts possessed the
characteristics described in the Prospectus dated October 19, 1995 and the
Prospectus Supplement dated May 24, 1996, filed pursuant to Rule 424(b)(2) of
the Securities Act of 1933, as amended, on May 30, 1996.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits:
1.1 Underwriting Agreement, dated May 22, 1996, among Cargill
Financial Services Corporation, as sponsor, Access Financial Receivables Corp.,
as seller, Access Financial Corp., Prudential Securities Incorporated and J.P.
Morgan Securities Inc.
4.1(a) Pooling and Servicing Agreement, dated as of May 1,
1996, among Cargill Financial Services Corporation, as sponsor, Access Financial
Receivables Corp., as seller, Access Financial Corp., as servicer, and The Bank
of New York, as trustee.
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4.1(b) Loan Sale Agreement, dated as of May 1, 1996 between
Access Financial Receivables Corp., as purchaser, and Access Financial Corp., as
seller.
4.1(c) Securitization Sponsorship Agreement, dated as of May
1, 1996 among Cargill Financial Services Corporation, Access Financial
Receivables Corp. and Access Financial Corp.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
CARGILL FINANCIAL SERVICES CORPORATION,
as Sponsor
By: /s/ Kenneth M. Duncan
---------------------------------
Name: Kenneth M. Duncan
Title: Senior Vice President
Dated: June 13, 1996
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EXHIBIT INDEX
Exhibit No. Description
1.1 Underwriting Agreement, dated May 22,
1996, among Cargill Financial Services
Corporation, as sponsor, Access Financial
Receivables Corp., as seller, Access
Financial Corp., Prudential Securities
Incorporated and J.P. Morgan Securities
Inc.
4.1(a) Pooling and Servicing Agreement, dated as
of May 1, 1996, among Cargill Financial
Services Corporation, as sponsor, Access
Financial Receivables Corp., as seller,
Access Financial Corp., as servicer, and
The Bank of New York, as trustee.
4.1(b) Loan Sale Agreement, dated as of May 1,
1996 between Access Financial Receivables
Corp., as purchaser, and Access Financial
Corp., as seller.
4.1(c) Securitization Sponsorship Agreement,
dated as of May 1, 1996 among Cargill
Financial Services Corporation, Access
Financial Receivables Corp. and Access
Financial Corp.
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EXECUTION COPY
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT TRUST 1996-1
$33,544,000 6.400% Class A-1 Certificates
$26,360,000 6.750% Class A-2 Certificates
$23,862,000 6.975% Class A-3 Certificates
$12,115,000 7.300% Class A-4 Certificates
$23,781,000 7.575% Class A-5 Certificates
$12,764,000 7.975% Class A-6 Certificates
$17,551,000 8.040% Class B-1 Certificates
UNDERWRITING AGREEMENT
PRUDENTIAL SECURITIES INCORPORATED,
as Representative (the
"Representative") of the
Underwriters named in Schedule I hereto
(collectively, the "Underwriters")
and as one of the Underwriters
One New York Plaza
New York, N.Y. 10292-2015
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, N.Y. 10292-2015
May 22, 1996
Dear Sirs:
Cargill Financial Services Corporation, a corporation
organized and existing under the laws of Delaware (the
"Sponsor"), Access Financial Receivables Corp., a corporation
organized and existing under the laws of Delaware (the
"Seller") Access Financial Corp., a corporation organized and existing
under the laws of Delaware ("Access") (the Sponsor, the Seller
and Access, collectively, the "Companies"), agree with the
Underwriters as follows:
Section 1. Issuance and Sale of Certificates. The
Sponsor has authorized the issuance and sale of Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificates,
Series 1996-1, Class A-1 Certificates in an aggregate principal
amount of $33,544,000, 6.400%, Class A-2 Certificates in an
aggregate principal amount of $26,360,000, 6.750%, Class A-3
Certificates in an aggregate principal amount of $23,862,000,
6.975% Class A-4 Certificates in an aggregate principal amount
of $12,115,000, 7.300%, Class A-5 Certificates in an aggregate
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principal amount of $23,781,000, 7.575%, Class A-6 Certificates
in an aggregate principal amount of $12,764,000, 7.975%, and
Class B-1 Certificates in an aggregate principal amount of
$17,551,000, 8.040% (collectively, the "Offered Certificates").
The Offered Certificates, the Class B-2 Certificates, the
Class C Certificates and the Residual Certificates (the Class B-2
Certificates, the Class C Certificates and the Residual
Certificates, collectively, the "Non-Offered Certificates")
(the Non-Offered Certificates and the Offered Certificates,
collectively, the "Certificates"), are to be issued by the
Access Financial Manufactured Housing Contract Trust 1996-1
(the "Trust") pursuant to a pooling and servicing agreement (the
"Pooling Agreement"), to be dated as of May 1, 1996, among the
Sponsor, the Seller, Access as servicer (in such capacity, the
"Servicer") and Bank of New York, as trustee (the "Trustee").
The Non-Offered Certificates are not to be sold hereunder. The
Certificates evidence all of the beneficial ownership interests
in the assets of the Trust consisting primarily of a pool of
actuarial manufactured housing installment sales contracts and
installment loan agreements (the "Contracts"). Each Contract
was originated by Access in the ordinary course of its business.
On or prior to the date of issuance of the
Certificates, Access will sell the Contracts to the Seller
pursuant to the terms of a Loan Sale Agreement (the "Loan Sale
Agreement"). In turn, on or prior to the date of issuance of
the Certificates, the Sponsor, the Seller and Access will enter
into a Securitization Sponsorship Agreement (the "Sponsorship
Agreement") under which the Sponsor will agree to create the
Trust, direct the Trust to acquire the Contracts from the
Seller and cause the Certificates to be issued. On the date of
issuance of the Certificates, the Seller will sell the
Contracts to the Trust pursuant to the Pooling Agreement.
An election will be made to treat certain of the
assets and Accounts of the Trust as "real estate mortgage
investment conduits" ("REMICs") as such term is defined in the
Internal Revenue Code of 1986, as it may be amended from time
to time (the "Code"). The Offered Certificates, the Class B-2
Certificates and Class C Certificates will be designated as
"regular interests" in a REMIC, and the Residual Certificates
will be designated as "residual interests" in a REMIC.
The offering of the Offered Certificates will be made
by the Underwriters, and each of the Companies understands that
the Underwriters propose to make a public offering of the
Offered Certificates for settlement on May 29, 1996.
Defined terms used herein shall have their respective
meanings as set forth in the Pooling Agreement.
As used herein, the term "Sponsor Documents" means
the Pooling Agreement, the Sponsorship Agreement and this
Agreement;
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and the term "Basic Documents" means the Pooling Agreement, the Sponsorship
Agreement, the Loan Sale Agreement and this Agreement.
Section 2. Representations and Warranties. A. The
Sponsor represents, warrants and agrees with the Underwriters,
that:
(i) A Registration Statement on Form S-3 (No.
33-96500) has (a) been prepared by the Sponsor on such Form in
conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act") and the rules and regulations
(the "Rules and Regulations") of the United States Securities
and Exchange Commission (the "Commission") thereunder, (b) been
filed with the Commission and (c) been declared effective by
the Commission, and no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding
for that purpose has been initiated or threatened, by the
Commission. Copies of such Registration Statement have been
delivered by the Sponsor to the Underwriters. There are no
contracts or documents of the Sponsor which are required to be
filed as exhibits to the Registration Statement pursuant to the
Securities Act or the Rules and Regulations which have not been
so filed or incorporated by reference therein on or prior to
the Effective Date of the Registration Statement other than such
documents or materials, if any, as either of the Underwriters
delivers to the Sponsor pursuant to Section 9D hereof for
filing on Form 8-K. The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
As used herein, the term "Effective Date" means the
date on and time at which the Registration Statement became
effective, or the date on and the time at which the most recent
post-effective amendment to such Registration Statement, if
any, was declared effective by the Commission. The term
"Registration Statement" means (i) the registration statement
referred to in the preceding paragraph, including the exhibits
thereto, (ii) all documents incorporated by reference therein
pursuant to Item 12 of Form S-3 and (iii) any post-effective
amendment filed and declared effective prior to the date of
issuance of the Certificates. The term "Base Prospectus" means
the prospectus included in the Registration Statement. The
term "Prospectus Supplement" means the prospectus supplement dated
the date hereof and specifically relating to the Offered
Certificates, as first filed with the Commission pursuant to
Rule 424 of the Rules and Regulations. The term "Prospectus"
means, together, the Base Prospectus and the Prospectus
Supplement. The term "Sponsor Offering Materials" means,
collectively, the Registration Statement, the Base Prospectus
and the information set forth under the caption "The Sponsor"
in the Prospectus Supplement. The term "Access Offering
Materials" means the Prospectus Supplement except for (x) the
information set forth under the caption "The Sponsor" therein
and (y) the
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Underwriter Information. The term "Underwriter Information" means the
information set forth under the caption "Plan of Distribution" in the Prospectus
Supplement and any information in the Prospectus Supplement relating to any
potential market- making, over-allotment or price stabilization activities of
the Underwriters.
(ii) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be,
conform in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Sponsor Offering
Materials do not and will not, as of the Effective Date or the
filing date thereof and of any amendment thereto, as
appropriate, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iii) The documents incorporated by reference in the
Sponsor Offering Materials, when they were filed with the
Commission conformed in all material respects to the
requirements of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as applicable,
and the Rules and Regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading; any further documents so filed and incorporated
by reference in the Sponsor Offering Materials, when such
documents are filed with the Commission will conform in all
material respects to the requirements of the Exchange Act and
the Rules and Regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided that no representation is made as to Derived
Information (as defined in Section 9E hereof).
(iv) Since the respective dates as of which
information is given in the Sponsor Offering Materials, or the
Sponsor Offering Materials as amended and supplemented, (a)
there has not been any material adverse change, or any
development involving a prospective material adverse change, in
or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of
operations, regulatory situation or business prospects of the
Sponsor and (b) the Sponsor has not entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Sponsor that, in either case, would
reasonably be expected to materially adversely affect the
interests of the holders of the Offered Certificates, otherwise
than as set forth
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or contemplated in the Sponsor Offering Materials, as so amended or
supplemented.
(v) The Sponsor is not aware of (a) any request by
the Commission for any further amendment of the Registration
Statement or the Prospectus or for any additional information,
(b) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose
or (c) any notification with respect to the suspension of the
qualification of the Offered Certificates for the sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(vi) The Sponsor has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to
do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property
or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the business or financial condition of the
Sponsor and has all power and authority necessary to own or
hold its properties, to conduct the business in which it is
engaged, to enter into and perform its obligations under each of the
Sponsor Documents and to cause the Certificates to be issued.
(vii) There are no actions, proceedings or
investigations pending before or threatened by any court,
administrative agency or other tribunal to which the Sponsor is
a party or of which any of its properties is the subject (a)
which if determined adversely to it is likely to have a
material adverse effect individually, or in the aggregate, on the
business or financial condition of the Sponsor, (b) asserting
the invalidity of any Sponsor Document, in whole or in part, or
the Certificates, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Companies of any of the
transactions contemplated by any Sponsor Document, in whole or
in part, or (d) which if determined adversely it is likely to
materially and adversely affect the performance by the Sponsor
of its obligations under, or the validity or enforceability of,
any Sponsor Document, in whole or in part, or the Certificates.
(viii) This Agreement has been, the Sponsorship
Agreement and the Pooling Agreement, when executed and
delivered as contemplated hereby and thereby will have been, duly
authorized, validly executed and delivered by the Sponsor, and
this Agreement constitutes, and the Sponsorship Agreement and
the Pooling Agreement upon execution and delivery thereof by
the Sponsor, shall constitute, valid and binding agreements of the
Sponsor, enforceable against the Sponsor in accordance with
their respective terms, except to the extent that the
enforceability hereof may be subject (a) to insolvency,
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reorganization, moratorium, receivership, conservatorship, or
other similar laws, regulations or procedures of general
applicability now or hereafter in effect relating to or
affecting creditors' rights generally, (b) to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (c) with respect to rights
of indemnity under this Agreement, to limitations of public
policy under applicable securities laws.
(ix) The issuance and delivery of the Certificates,
the execution, delivery and performance of the Sponsor
Documents by the Sponsor and the consummation of the transactions
contemplated hereby and thereby, do not and will not conflict
with or result in a breach of or violate any term or provision
of or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement, or other agreement or instrument to
which the Sponsor is a party, by which the Sponsor may be bound
or to which any of the property or assets of the Sponsor or any
of its respective subsidiaries may be subject, nor will such
actions result in any violation of the provisions of the
articles of incorporation or by-laws of the Sponsor or any law,
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Sponsor or any of its properties or assets.
(x) KPMG Peat Marwick LLP is an independent public
accountant with respect to the Sponsor as required by the
Securities Act and the Rules and Regulations.
(xi) The direction by the Sponsor to the Trustee to
execute, authenticate, countersign, issue and deliver the
Certificates will be duly authorized by the Sponsor, and,
assuming the Trustee has been duly authorized to do so, when
executed, authenticated, countersigned, issued and delivered by
the Trustee in accordance with the Pooling Agreement, the
Certificates will be validly issued and outstanding and will be
entitled to the benefits of the Pooling Agreement.
(xii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of the United States is required
for the issuance and sale of the Certificates, or the consummation
by the Sponsor of the other transactions contemplated by the
Sponsor Documents except the registration under the Securities
Act of the Offered Certificates and such consents, approvals,
authorizations, registrations or qualifications as may have
been obtained or effected or as may be required under securities or
Blue Sky laws in connection with the purchase and distribution
of the Offered Certificates by the Underwriters.
(xiii) The Sponsor possesses all material licenses,
certificates, authorizations or permits issued by the
appropriate state, Federal or foreign regulatory agencies or
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bodies necessary to conduct the business now conducted by it
and as described in the Sponsor Offering Materials (or is exempt
therefrom) and the Sponsor has not received notice of any
proceedings relating to the revocation or modification of such
license, certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect
the conduct of its business, operations, financial condition or
income.
(xiv) Any taxes, fees and other governmental charges
in connection with the execution, delivery and issuance of any
of the Sponsor Documents and the Certificates that are required
to be paid by the Sponsor at or prior to the Closing Date have
been paid or will be paid at or prior to the Closing Date.
(xv) The Sponsor will not nor will it permit any of
its subsidiaries to, without the prior written consent of the
Representative, contract to sell any manufactured housing pass-
through certificates, manufactured housing pass-through notes
or collateralized manufactured housing obligations or other
similar securities issued by the Sponsor, the Seller or Access,
with the exception of the sale of the Class B-2 Certificates to
Prudential Securities Incorporated (or its designee), for a
period (the "Lock-up Period") ending five (5) business days
after the later of termination of the syndicate or the Closing
Date; provided, however, in no event shall the Lock-up Period
extend beyond one month after the date hereof.
(xvi) At the Closing Date, each of the
representations and warranties of the Sponsor set forth in any
of the Sponsor Documents will be true and correct in all
material respects.
Any certificate signed by an officer or signer of the
Sponsor, and delivered to the Representative or counsel to the
Representative in connection with an offering of the Offered
Certificates shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby
to each Person to whom the representations and warranties in this
Section 2A are made.
B. Access and the Seller represent, warrant and
agree, jointly and severally, with the Underwriters, that:
(i) The Access Offering Materials do not and will
not, as of the applicable filing date therefor and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein not misleading.
(ii) The documents incorporated by reference in the
Access Offering Materials, when they were filed with the
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Commission conformed in all material respects to the
requirements of the Securities Act or the Exchange Act and the
Rules and Regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; any further documents so filed and incorporated by
reference in the Access Offering Materials, when such documents
are filed with the Commission will conform in all material
respects to the requirements of the Exchange Act and the Rules
and Regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that no
representation is made as to Derived Information except to the
extent such documents reflect Access - Provided Information (as
defined in Section 9E hereof).
(iii) Since the respective dates as of which
information is given in the Access Offering Materials, or the
Access Offering Materials as amended and supplemented, (a)
there has not been any material adverse change, or any development
involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory
situation or business prospects of Access or the Seller and
(b) neither Access nor the Seller has entered into any transaction
or agreement (whether or not in the ordinary course of
business) material to Access or the Seller that, in either
case, would reasonably be expected to materially adversely
affect the interests of the holders of the Offered
Certificates, otherwise than as set forth or contemplated in the Access
Offering Materials, as so amended or supplemented.
(iv) Neither Access nor the Seller is aware of (a)
any request by the Commission for any further amendment of the
Registration Statement or the Prospectus or for any additional
information, (b) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose or (c) any notification with respect to the suspension
of the qualification of the Offered Certificates for the sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(v) Each of Access and the Seller has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership
or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified
would not have a material adverse effect on the business or
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financial condition of Access or the Seller, as the case may
be, and each of Access and the Seller has all power and authority
necessary to own or hold its properties, to conduct the
business in which it is engaged, to enter into and perform its
obligations under each of the Basic Documents.
(vi) There are no actions, proceedings or
investigations pending before or threatened by any court,
administrative agency or other tribunal to which either of
Access and/or the Seller is a party or of which any of its
properties is the subject (a) which if determined adversely to
it is likely to have a material adverse effect individually, or
in the aggregate, on the business or financial condition of
Access or the Seller, as the case may be, (b) asserting the
invalidity of any Basic Document, in whole or in part, (c)
seeking to prevent the issuance of the Certificates or the
consummation by Access or the Seller of any of the transactions
contemplated by any Basic Document, in whole or in part, as the
case may be, or (d) which if determined adversely it is likely
to materially and adversely affect the performance by Access
and/or the Seller of its obligations under, or the validity or
enforceability of, any Basic Document, in whole or in part, or
the Certificates.
(vii) This Agreement has been, and the Loan Sale
Agreement, the Sponsorship Agreement and the Pooling Agreement,
when executed and delivered as contemplated hereby and thereby
will have been, duly authorized, validly executed and delivered
by Access, and this Agreement constitutes, and the Loan Sale
Agreement, the Sponsorship Agreement and the Pooling Agreement
upon execution and delivery thereof by Access, shall
constitute, valid and binding agreements of Access, enforceable against
Access in accordance with their respective terms, except to the
extent that the enforceability thereof may be subject (a) to
insolvency, reorganization, moratorium, receivership,
conservatorship, or other similar laws, regulations or
procedures of general applicability now or hereafter in effect
relating to or affecting creditors' rights generally, (b) to
general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law), and (c) with
respect to rights of indemnity under this Agreement, to
limitations of public policy under applicable securities laws.
(viii) This Agreement has been, and the Loan Sale
Agreement, the Sponsorship Agreement and the Pooling Agreement,
when executed and delivered as contemplated hereby and thereby
will have been, duly authorized, validly executed and delivered
by the Seller, and this Agreement constitutes, and the Loan
Sale Agreement, the Sponsorship Agreement and the Pooling Agreement
upon execution and delivery thereof by the Seller, shall
constitute, valid and binding agreements of the Seller,
enforceable against the Seller in accordance with their
respective terms, except to the extent that the enforceability
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thereof may be subject (a) to insolvency, reorganization,
moratorium, receivership, conservatorship, or other similar
laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights
generally, (b) to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law), and (c) with respect to rights of indemnity under this
Agreement, to limitations of public policy under applicable
securities laws.
(ix) The execution, delivery and performance of the
Basic Documents by Access and the Seller, and the consummation
of the transactions contemplated hereby and thereby, do not and
will not conflict with or result in a breach of or violate any
term or provision of or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument to which Access or the Seller is a
party, by which Access or the Seller may be bound or to which
any of the property or assets of Access or the Seller or any of
their respective subsidiaries may be subject, nor will such
actions result in any violation of the provisions of the
articles of incorporation or by-laws of Access or the Seller or
any law, statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over Access
or the Seller or any of their respective properties or assets.
(x) KPMG Peat Marwick LLP is an independent public
accountant with respect to Access and the Seller as required by
the Securities Act and the Rules and Regulations.
(xi) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of the United States is required
for the issuance and sale of the Certificates, or the consummation
by Access or the Seller of the other transactions contemplated
by each Basic Document except (a) the registration under the
Securities Act of the Offered Certificates, (b) such consents,
approvals, authorizations, registrations or qualifications as
may have been obtained or effected or as may be required under
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Certificates by the Underwriters
and (c) with respect to any UCC filings required to effect the
transfer of the Contracts pursuant to any Basic Document which
shall be filed on or prior to the Closing Date.
(xii) Each of Access and the Seller possesses all
material licenses, certificates, authorizations or permits
issued by the appropriate state, Federal or foreign regulatory
agencies or bodies necessary to conduct the business now
conducted by it and as described in the Access Offering
Materials (or each is exempt therefrom) and neither Access nor
the Seller has received notice of any proceedings relating to
the revocation or modification of such license, certificate,
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authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, is
likely to materially and adversely affect the conduct of its
business, operations, financial condition or income.
(xiii) Access has the power and authority to sell
the Contracts to the Seller pursuant to the Loan Sale Agreement.
Following the conveyance of the Contracts to the Seller
pursuant to the Loan Sale Agreement, the Seller will own the Contracts
free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest
(collectively, "Liens") and the Seller will have the power and
authority to sell such Contracts to the Trust. Following the
conveyance of the Contracts to the Trust pursuant to the
Pooling Agreement, the Trust will own such Contracts free and clear of
any Liens other than Liens created by the Pooling Agreement.
(xiv) As of the Cut-off Date, each of the Contracts
will meet the eligibility criteria described in the Prospectus.
(xv) None of Access, the Seller nor the Trust
created by the Pooling Agreement will conduct their operations while
any of the Certificates are outstanding in a manner that would
require Access, the Seller or the Trust to be registered as an
"investment company" under the Investment Company Act of 1940,
as amended (the "1940 Act"), as in effect on the date hereof.
(xvi) Each of the Certificates and the Pooling
Agreement conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(xvii) Any taxes, fees and other governmental
charges in connection with the execution, delivery and issuance of any
of the Basic Documents and the Certificates that are required
to be paid by either Access or the Seller at or prior to the
Closing Date have been paid or will be paid at or prior to the
Closing Date.
(xviii) The chief executive office of each of Access
and the Seller is listed opposite its name on Schedule II
hereto, which office is the place where it is "located" for the
purposes of Section 9-103(3)(d) of the Uniform Commercial Code
as in effect in the State of New York, and the offices of each
of Access and the Seller where it keeps its respective records
concerning the Contracts are also listed in said Schedule
opposite its name and there have been no other such locations
during the four months preceding the Closing Date.
(xix) Access has filed the preliminary prospectus
supplement with the Commission relating to the Offered
Certificates pursuant to and in accordance with Rule 424(b).
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(xx) At the Closing Date, each of the representations
and warranties of Access or the Seller set forth in any of the
Basic Documents will be true and correct in all material
respects.
Any certificate signed by an officer or signer of
either Access or the Seller and delivered to the Representative
or counsel to the Representative in connection with an offering
of the Offered Certificates shall be deemed, and shall state
that it is, a representation and warranty as to the matters
covered thereby to each Person to whom the representations and
warranties in this Section 2B are made.
Section 3. Purchase and Sale. The Underwriters'
commitment to purchase the Offered Certificates pursuant to
this Agreement shall be deemed to have been made on the basis of
the representations and warranties of the Sponsor, the Seller and
Access herein contained and shall be subject to the terms and
conditions herein set forth. The Sponsor agrees to instruct
the Trust to issue the Offered Certificates to each of the
Underwriters, and the Underwriters agree, severally and not
jointly, to purchase at a purchase price set forth on Schedule
I hereto, the principal amount of the Offered Certificates set
forth opposite the name of such Underwriter on such Schedule I.
Section 4. Delivery and Payment. Payment of the
purchase price for, and delivery of, any Offered Certificates
to be purchased by the Underwriters shall be made at the office
of Dewey Ballantine, 1301 Avenue of the Americas, New York,
New York, or at such other place as shall be agreed upon by the
Representative and the Companies, at 10:00 a.m. New York City
time on May 29, 1996 (the "Closing Date"), or at such other
time or date as shall be agreed upon in writing by the
Representative and the Companies. Payment shall be made by
wire transfer of same day funds payable to the account
designated by the Sponsor. Each of the Offered Certificates so
to be delivered shall be represented by one or more global
certificates registered in the name of Cede & Co., as nominee
for The Depository Trust Company.
The Companies agree to have the Offered Certificates
available for inspection, checking and packaging by the
Representative in New York, New York, not later than 12:00 P.M.
New York City time on the business day prior to the Closing
Date.
The parties agree the settlement of the Offered
Certificates sold pursuant to this Agreement shall take place
on the terms set forth herein and not as set forth in Rule 15c6-
1(a) under the Exchange Act.
Section 5. Offering by Underwriters. It is
understood that the Underwriters, severally and not jointly,
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propose to offer the Offered Certificates for sale to the
public as set forth in the Prospectus.
Section 6. Covenants of Access. Access covenants
with the Underwriters as follows:
A. To cause to be prepared a Prospectus in a form
approved by the Representative, to file such Prospectus
pursuant to Rule 424(b) under the Securities Act within the time period
prescribed by Rule 424(b) and to provide the Representative
with evidence satisfactory to the Representative of such timely
filing; to cause to be made no further amendment or any
supplement to the Registration Statement or to the Prospectus
prior to the 91st day following the Closing Date except as
permitted herein; to advise the Representative, promptly after
it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective
prior to the 91st day following the Closing Date or any
supplement to the Prospectus or any amended Prospectus has been
filed prior to the 91st day following the Closing Date and to
furnish the Representative with copies thereof; to file
promptly all reports and any global proxy or information statements
required to be filed by the Sponsor with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and, until the 91st
day following the Closing Date; to promptly advise the
Representative of its receipt of notice of the issuance by the
Commission of any stop order or of: (i) any order preventing
or suspending the use of the Prospectus; (ii) the suspension of
the qualification of the Offered Certificates for offering or
sale in any jurisdiction; (iii) the initiation of or threat of
any proceeding for any such purpose; or (iv) any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information. In
the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or
suspending any such qualification, the Sponsor promptly shall use its
best efforts to obtain the withdrawal of such order by the
Commission.
B. To furnish promptly to the Representative and to
counsel for the Representative a signed copy of the
Registration Statement as originally filed with the Commission, and of each
amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such
number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the
Prospectus and any amended or supplemented Prospectus; and
(iii) any document incorporated by reference in the Prospectus
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(including exhibits thereto). If the delivery of a Prospectus
is required at any time in connection with the offering or sale
of the Offered Certificates and if at such time any events
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, the Sponsor shall
notify the Representative and, upon the Representative's
request based upon the advice of counsel, shall file such document and
prepare and furnish without charge to the Underwriters and to
any dealer in securities as many copies as the Underwriters may
from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which corrects such statement
or omission or effects such compliance.
D. To cause to be filed promptly with the Commission
any amendment to the Registration Statement or the Prospectus
or any supplement to the Prospectus that may, in the judgment of
Access or the Representative, be required by the Securities Act
or requested by the Commission.
E. To cause to be furnished to the Representative
and counsel for the Representative, prior to filing with the
Commission, and to obtain the consent of the Representative,
which consent will not unreasonably be withheld, for the filing
of the following documents relating to the Certificates: (i)
any amendment to the Registration Statement or supplement to
the Prospectus, or document incorporated by reference in the
Prospectus, or (ii) Prospectus pursuant to Rule 424 of the
Rules and Regulations.
F. To cause to be made generally available to
holders of the Offered Certificates as soon as practicable, but in any
event not later than 90 days after the close of the period
covered thereby, a statement of earnings of the Trust (which
need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including Rule
158) and covering a period of at least twelve consecutive
months beginning not later than the first day of the first fiscal
quarter following the Closing Date.
G. To use its best efforts, in cooperating with the
Sponsor, the Seller and the Underwriters, to qualify the
Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the
United States as the Underwriters may designate, and maintain
or cause to be maintained such qualifications in effect for as
long
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as may be required for the distribution of the Offered Certificates. Access will
cause the filing of such statements and reports as may be required by the laws
of each jurisdiction in which the Offered Certificates have been so qualified.
H. So long as the Offered Certificates shall be
outstanding, Access shall cause the Trustee, pursuant to the
Pooling Agreement, to deliver to the Representative as soon as
such statements are furnished to the Trustee: (i) the annual
statement as to compliance of the Servicer delivered to the
Trustee pursuant to the Pooling Agreement; (ii) the annual
statement of a firm of independent public accountants furnished
to the Trustee pursuant to the Pooling Agreement; and (iii) the
monthly reports furnished to the Owners pursuant to the Pooling
Agreement.
I. So long as any of the Offered Certificates are
outstanding, Access will furnish to the Representative (i) as
soon as practicable after the end of the fiscal year of the
Trust all documents required to be distributed to
Certificateholders and other filings with the Commission
pursuant to the Exchange Act, or any order of the Commission
thereunder with respect to any securities issued by the
Sponsor, the Seller or Access that are (A) nonstructured equity or debt
offerings of the Sponsor, the Seller or Access or (B) the
Offered Certificates and (ii) from time to time, any other
information concerning the Sponsor, the Seller or Access filed
with any government or regulatory authority which is otherwise
publicly available, as the Representative shall reasonably
request in writing.
J. Access will apply the net proceeds from the sale
of the Offered Certificates in the manner set forth in the
Prospectus.
K. If, between the date hereof or, if earlier, the
dates as of which information is given in the Prospectus and
the Closing Date, to the knowledge of Access, there shall have
been any material change, or any development involving a
prospective material change in or affecting the general affairs,
management, financial position, shareholders' equity or results
of operations of the Companies, Access will give prompt written
notice thereof to the Underwriters.
L. The Trustee will prepare, or cause to be
prepared, and file, or cause to be filed, a timely election to treat the
Trust Fund as a REMIC for Federal income tax purposes and will
file, or cause to be filed, such tax returns and take such
actions, all on a timely basis, as are required to elect and
maintain such status.
M. To the extent, if any, that the ratings provided
with respect to the Offered Certificates by the rating agency or
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agencies that initially rate the Offered Certificates are
conditional upon the furnishing of documents or the taking of
any other actions by the Sponsor, the Seller or Access, Access
shall use its best efforts to furnish or cause to be furnished
such documents and take any such other actions.
Section 7. Conditions of the Obligations of the
Underwriters. The obligations of the Underwriters to purchase
the Offered Certificates pursuant to this Agreement are subject
to (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Companies
herein contained, (ii) the accuracy of the statements of
officers of the Companies made pursuant hereto, (iii) the
performance by the Companies of all of their respective
obligations hereunder, and the performance by the Companies of
all of their respective obligations under the Basic Documents
required to be satisfied on or prior to the Closing Date and
(iv) the following conditions as of the Closing Date:
A. No stop order suspending the effectiveness of the
Registration Statement shall have been issued, and no
proceeding for that purpose shall have been initiated or threatened by
the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus shall have been complied with.
B. The Representative shall have received each of
the Basic Documents and the Offered Certificates in form and
substance satisfactory to the Representative and duly executed
by the signatories required pursuant to the respective terms
thereof.
C. The Representative shall have received from Dewey
Ballantine, counsel for the Sponsor, the Seller and Access, a
favorable opinion, dated the Closing Date and satisfactory in
form and substance to the Representative and counsel for the
Representative to the effect that:
(i) The issuance and sale of the Offered
Certificates have been duly authorized and, when executed,
authenticated, countersigned and delivered by the Trustee
in accordance with the Pooling Agreement and delivered and
paid for pursuant to this Agreement, will be validly
issued and outstanding and will be entitled to the benefits of
the Pooling Agreement.
(ii) No authorization, approval, consent or order
of, or filing with, any court or governmental agency or
authority is necessary under the federal law of the United
States or the laws of the State of New York in connection
with the execution, delivery and performance by each of
the Sponsor, the Seller and Access of the Basic Documents to
which it is a party, except such as may be required under
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the Act or the Rules and Regulations and blue sky or other
state securities laws, and such other approvals or
consents as have been obtained.
(iii) Each of the Basic Documents constitutes the
legal, valid and binding obligation of each of the
Sponsor, the Seller and Access, as applicable, enforceable against
each of the Sponsor, the Seller and Access, as applicable,
in accordance with their respective terms, except that as
to enforceability such enforcement may (A) be subject to
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of
creditors generally, (B) be limited by general principles
of equity (whether considered in a proceeding at law or in
equity) and (C) the enforceability as to rights to
indemnification may be subject to limitations of public
policy under applicable laws.
(iv) The Pooling Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as
amended.
(v) None of the Sponsor, the Seller, Access nor the
Trust is required to be registered as an "investment
company" under the Investment Company Act of 1940, as
amended.
(vi) The direction by the Sponsor to the Trustee to
execute, issue, countersign and deliver the Offered
Certificates has been duly authorized and, when the
Offered Certificates are executed and authenticated by the
Trustee in accordance with the Pooling Agreement and delivered
and paid for pursuant to this Agreement, they will be validly
issued and outstanding and entitled to the benefits
provided by the Pooling Agreement.
(vii) Immediately prior to the transfer of the
Contracts by Access to the Seller pursuant to the Loan
Sale Agreement, Access was the sole owner of all right, title
and interest in the Contracts and other property
transferred by the Seller to the Trust. Immediately prior
to the transfer of the Contracts by the Seller to the
Trust pursuant to the Pooling Agreement, the Seller was the
sole owner of all right, title and interest in the Contracts
and other property to be transferred to the Trust.
(viii) Access has full power and authority to sell
and assign the property to be sold and assigned to the
Seller pursuant to the Loan Sale Agreement and has duly
authorized such sale and assignment to the Seller by all
necessary corporate action. The Seller has full power and
authority to sell and assign the property to be deposited
with the Trustee as part of the Trust pursuant to the
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Pooling Agreement and has duly authorized such sale and
assignment to the Trustee by all necessary corporate
action.
(ix) The Seller has directed the Trustee to
transfer, assign, set over and otherwise convey without recourse,
to the Trust, all right, title and interest of the Seller in
and to each Contract listed on the Contract Schedule
delivered by the Seller on the Startup Day, and all of its
right, title and interest in and to (A) scheduled payments
of interest due on each Contract after the Cut-Off Date
and (B) scheduled payments of principal due, and unscheduled
collections of principal received, on each Contract on and
after the Cut-off Date; such transfer of the Contracts set
forth on the Contract Schedule to the Trust will be
absolute and is intended by the Seller and all parties
hereto to be treated as a sale to the Trust.
(x) The Offered Certificates and each of the Basic
Documents conform in all material respects with the
respective descriptions thereof contained in the
Registration Statement and the Prospectus.
(xi) The statements in the Base Prospectus under the
captions "Summary of Prospectus - Certain Federal Income
Tax Consequences", "Summary of Prospectus - ERISA
Considerations", "ERISA Considerations" and "Certain
Federal Income Tax Consequences" and the statements in the
Prospectus Supplement under the captions "Summary - ERISA
Considerations", "Summary - Certain Federal Income Tax
Consequences", "ERISA Considerations" and "Certain Federal
Income Tax Consequences", to the extent that they
constitute matters of law or legal conclusions with
respect thereto, have been reviewed by such counsel and represent
a fair and accurate summary of the matters addressed
therein, under existing law and the assumptions stated
therein.
(xii) The statements in the Prospectus under the
captions "Certain Legal Aspects of the Contracts,"
"Certain Legal Aspects of Mortgage Loans and Related Matters" and
"Legal Investment Matters" to the extent they constitute
matters of law or legal conclusions, are correct in all
material respects.
(xiii) The Offered Certificates will, when issued,
be properly characterized for Federal income tax purposes as
indebtedness of the Seller and the Trust created by the
Pooling Agreement and will not constitute a "taxable
mortgage pool" within the meaning of Section 7701(i) of
the Code.
(xiv) Assuming compliance with all of the provisions
of the Pooling Agreement, the arrangement pursuant to
which
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the Contracts will be administered by the Trustee and pursuant to which
the Offered Certificates will be sold will be treated as a REMIC as
defined by Section 860D of the Code and the Offered Certificates and the
Class B-2 and Class C Certificates will be treated as "regular
interests" in a REMIC (or a combination of "regular interests" in a
REMIC), and the Residual Certificates will be treated as "residual
interests" in a REMIC on the date of issuance thereof and will continue
to qualify as a REMIC for so long as such arrangement continues to
comply with any applicable changes in the provisions of the Code and
regulations issued thereunder.
(xv) The Registration Statement is effective under
the Act and no stop order suspending the effectiveness of
the Registration Statement has been issued, and to the
best of such counsel's knowledge no proceeding for that
purpose has been instituted or threatened by the Commission under
the Act.
(xvi) The conditions to the use by the Sponsor of a
registration statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been
satisfied with respect to the Registration Statement and
the Prospectus. There are no contracts or documents which
are required to be filed as exhibits to the Registration
Statement pursuant to the Act or the Rules and Regulations
thereunder which have not been so filed.
(xvii) The Registration Statement at the time it
became effective, and any amendments thereto at the time
such amendment becomes effective (other than the
information set forth in the financial statements and
other financial and statistical information contained therein,
as to which such counsel need express no opinion),
complied as to form in all material respects with the
applicable requirements of the Act and the Rules and
Regulations thereunder.
(xviii) The execution, delivery and performance of
this Agreement, the Sponsorship Agreement, the Pooling
Agreement and the Offered Certificates by the Sponsor will
not conflict with or violate any federal statute, rule,
regulation or order of any federal governmental agency or
body, or any federal court having jurisdiction over the
Sponsor or its properties or assets.
(xix) The execution, delivery and performance of
each of the Basic Documents by the Seller will not conflict
with or violate any federal statute, rule, regulation or
order of any federal governmental agency or body, or any
federal court having jurisdiction over the Seller or its
properties or assets.
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(xx) The execution, delivery and performance of
each of the Basic Documents by Access will not conflict with
or violate any federal statute, rule, regulation or order of
any federal governmental agency or body, or any federal
court having jurisdiction over Access or its properties or
assets.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and other
representatives of each of the Seller, the Sponsor, the
Servicer, the Trustee and the Underwriters at which the
contents of the Registration Statement and the Prospectus and related
matters were discussed and on the basis of the foregoing, no
facts have come to such counsel's attention that have led such
counsel to believe the Registration Statement, at the time it
became effective and as of the date of such counsel's opinion
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of its date and as of
the date of such counsel's opinion, contained or contains an
untrue statement of material fact or omitted or omits to state a
material fact necessary to make the statements therein not
misleading; it being understood that such counsel need express
no belief with respect to the financial statements, schedules
and other financial and statistical data included in the
Registration Statement or the Prospectus.
D. The Sponsor shall have delivered to the
Representative a certificate, dated the Closing Date, of an
authorized officer and/or signer of the Sponsor to the effect
that the signer of such certificate has carefully examined this
Agreement, the Sponsorship Agreement, the Pooling Agreement and
the Prospectus and that: (i) the representations and warranties
of the Sponsor in each Sponsor Document are true and correct in
all material respects at and as of the Closing Date with the
same effect as if made on the Closing Date, (ii) the Sponsor
has complied in all material respects with all the agreements and
satisfied in all material respects all the conditions on its
part to be performed or satisfied under each Sponsor Document
at or prior to the Closing Date, (iii) no stop order suspending
the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to
such officer's and/or signer's knowledge, threatened, (iv)
there has been no material adverse change in the condition
(financial or other), earnings, business, properties or
prospects of the Sponsor, whether or not arising from
transactions in the ordinary course of business, except as set
forth or contemplated in the Prospectus, and (v) nothing has
come to such officer's and/or signer's attention that would
lead such officer and/or signer to believe that the Sponsor
Offering Materials contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in
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order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
The Sponsor shall attach to such certificate a true
and correct copy of its certificate of incorporation, as
appropriate, and bylaws which are in full force and effect on
the date of such certificate and a certified true copy of the
resolutions of its Board of Directors with respect to the
transactions contemplated herein.
E. The Representative shall have received from the
Seller a certificate dated the Closing Date, of an authorized
officer of the Seller to the effect that the signer of such
certificate has carefully examined this Agreement, the Loan
Sale Agreement, the Sponsorship Agreement, the Pooling Agreement
and the Prospectus and that: (i) the representations and
warranties of the Seller in each of the Basic Documents are
true and correct in all material respects at and as of the
Closing Date with the same effect as if made on the Closing
Date, (ii) the Seller has complied in all material respects
with all the agreements and satisfied in all material respects
all the conditions on its part to be performed or satisfied
under each of the Basic Documents at or prior to the Closing
Date, and (iii) there has been no material adverse change in
the condition (financial or other), earnings, business,
properties or prospects of the Seller whether or not arising
from transactions in the ordinary course of business, except as
set forth or contemplated in the Prospectus.
The Seller shall attach to such certificate a true
and correct copy of its certificate of incorporation, as
appropriate, and bylaws which are in full force and effect on
the date of such certificate and a certified true copy of the
resolutions of its Board of Directors with respect to the
transactions contemplated herein.
F. The Representative shall have received from
Phillip M. Fantle, Esq., in-house counsel of the Sponsor, a
favorable opinion dated the Closing Date and satisfactory in
form and substance to the Representative and counsel for the
Representative to the effect that:
(i) The Sponsor has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Delaware with full corporate
power to own its property or assets and to conduct its business
as presently conducted by it and as described in the
Prospectus, and is in good standing in each jurisdiction
in which the conduct of its business or the ownership of its
property or assets requires such qualification and where
the failure to be so qualified would have a material
adverse effect on its condition (financial or otherwise).
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(ii) Each Sponsor Document has been duly authorized,
executed and delivered by authorized officers or signers
of the Sponsor.
(iii) The direction by the Sponsor to the Trustee to
execute, issue, countersign and deliver the Offered
Certificates has been duly authorized by the Sponsor.
(iv) The execution, delivery and performance of each
Sponsor Document by the Sponsor will not conflict with or
result in a material breach of any of the terms or
provisions of, or constitute a material default under, or
result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of the
Sponsor pursuant to the terms of the certificate of
incorporation or the by-laws of the Sponsor or any
statute, rule, regulation or order of any governmental agency or
body of the State of Minnesota, or any Minnesota state
court having jurisdiction over the Sponsor or its property
or assets or any material agreement or instrument known to
such counsel to which the Sponsor is a party or by which
the Sponsor or any of its property or assets is bound.
(v) No authorization, approval, consent or order of,
or filing with, any court or governmental agency or
authority of the State of Minnesota is necessary in
connection with the execution, delivery and performance by
the Sponsor of any Sponsor Document except such as may be
required under blue sky or other state securities laws,
filings with respect to the transfer of the Land Secured
Contracts to the Trust pursuant to the Pooling Agreement
and such other approvals or consents as have been obtained.
(vi) To such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Sponsor
is a party or of which any property or assets of the Sponsor
is the subject, and no such proceedings are to the best of
such counsel's knowledge threatened or contemplated by
governmental authorities against the Sponsor or the Trust,
that, (A) are required to be disclosed in the Registration
Statement or (B) (i) assert the invalidity of all or any
part of any Sponsor Document, (ii) seek to prevent the
issuance of the Offered Certificates, (iii) could
materially adversely affect the Sponsor's obligations
under any Sponsor Document or (iv) seek to affect adversely the
Federal or state income tax attributes of the Offered
Certificates.
G. The Representative shall have received from
Alston & Bird, counsel for Access and the Seller, or such other
counsel reasonably acceptable to the Representative and its
counsel, a favorable opinion, dated the Closing Date and
satisfactory in
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form and substance to the Representative and counsel for the Representative to
the effect that:
(i) Each of Access and the Seller is validly
existing as a corporation in good standing under the laws of the
State of Delaware with full corporate power to own its
property or assets and to conduct its business as
presently conducted by it and as described in the Prospectus, and
is in good standing in each jurisdiction in which it
conducts a material part of its business and where the failure to
be so qualified would have a material adverse effect on
its condition (financial or otherwise).
(ii) Each of the Basic Documents has been duly
authorized, executed and delivered by authorized officers
or signers of Access.
(iii) Each of the Basic Documents has been duly
authorized, executed and delivered by authorized officers
or signers of the Seller.
(iv) The execution, delivery and performance of
each of the Basic Documents by Access will not conflict with
or result in a material breach of any of the terms or
provisions of, or constitute a material default under, or
result in the creation or imposition of any lien, charge
or encumbrance (other than those arising under the Basic
Documents for the creation of liens) upon any of the
property or assets of Access pursuant to the terms of the
certificate of incorporation or the by-laws of Access or
any statute, rule, regulation or order of any federal or
Georgia governmental agency or body, or any federal or
Georgia state court having jurisdiction over Access or its
property or assets or any material agreement or instrument
known to such counsel to which Access is a party or by
which Access or any of its property or assets is bound
except where such conflict, breach or default would not
have a material adverse effect on its condition (financial
or otherwise).
(v) The execution, delivery and performance of each
of the Basic Documents by the Seller will not conflict
with or result in a material breach of any of the terms or
provisions of, or constitute a material default under, or
result in the creation or imposition of any lien, charge
or encumbrance (other than those arising under the Basic
Documents for the creation of liens) upon any of the
property or assets of the Seller pursuant to the terms of
the certificate of incorporation or the by-laws of the
Seller or any statute, rule, regulation or order of any
federal or Georgia governmental agency or body, or any
federal or Georgia state court having jurisdiction over
the Seller or its property or assets or any material
agreement
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or instrument known to such counsel, to which the Seller is a party or
by which the Seller or any of its property or assets is bound except
where such conflict, breach or default would not have a material adverse
effect on its condition (financial or otherwise).
(vi) No authorization, approval, consent or order
for, or filing with, any federal or Georgia state court
or governmental agency or authority is necessary in
connection with the execution, delivery and performance by
Access of each of the Basic Documents except (a) such as
may be required under blue sky or other state securities
laws, (b) such other approvals or consents as have been
obtained and (c) with respect to the filing of financing
statements pursuant to the Basic Documents.
(vii) No authorization, approval, consent or order
of, or filing with, any federal or Georgia state court or
governmental agency or authority is necessary in
connection with the execution, delivery and performance by the
Seller of each of the Basic Documents except (a) such as may be
required under blue sky or other state securities laws,
(b) filings with respect to the transfer of the Land Secured
Contracts to the Trust pursuant to the Pooling Agreement,
(c) such other approvals or consents as have been obtained
and (d) with respect to the filing of financing statements
pursuant to the Basic Documents.
(viii) To such counsel's knowledge, there are no
legal or governmental proceedings pending to which Access
is a party or of which any property or assets of Access is
the subject, and no such proceedings are to the best of
such counsel's knowledge threatened or contemplated by
governmental authorities against Access or the Trust,
that, (A) are required to be disclosed in the Registration
Statement or (B) (i) assert the invalidity of all or any
part of the Basic Documents, (ii) seek to prevent the
issuance of the Offered Certificates, (iii) could
materially adversely affect Access' obligations under the
Basic Documents, or (iv) seek to affect adversely the
Federal or state income tax attributes of the Offered
Certificates.
(ix) To such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Seller is
a party or of which any property or assets of the Seller
is the subject, and no such proceedings are to the best of
such counsel's knowledge threatened or contemplated by
governmental authorities against the Seller or the Trust,
that, (A) are required to be disclosed in the Registration
Statement or (B) (i) assert the invalidity of all or any
part of the Basic Documents, (ii) seek to prevent the
issuance of the Offered Certificates, (iii) could
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materially adversely affect the Seller's obligations under
the Basic Documents or (iv) seek to affect adversely the
Federal or state income tax attributes of the Offered
Certificates.
(x) Such counsel shall state that it is familiar
with the standard operating procedures of Access relating
to its acquisition of a perfected first priority security
interest under Georgia law in the manufactured homes
financed by Access pursuant to manufactured housing
installment sale contracts and installment loan contracts
in the ordinary course of its business. Assuming that the
standard procedures of Access are followed with respect to
the perfection of security interests in the manufactured
homes securing the Contracts (the "Manufactured Homes")
(and such counsel has no reason to believe that Access has
not or will not continue to follow its standard procedures
in connection with the perfection of security interests in
the Manufactured Homes), Access has acquired or will
acquire a perfected first priority security interest in
the Manufactured Homes.
(xi) The Contracts (other than the Land Secured
Contracts) are chattel paper, as defined in the UCC in the
State of Georgia.
H. The Representative shall have received from
Access a certificate dated the Closing Date, of an authorized
officer of Access to the effect that the signer of such
certificate has carefully examined this Agreement, the Loan
Sale Agreement, the Sponsorship Agreement, the Pooling Agreement
and the Prospectus and that: (i) the representations and
warranties of Access in each of the Basic Documents are true
and correct in all material respects at and as of the Closing
Date with the same effect as if made on the Closing Date, (ii)
Access has complied in all material respects with all the
agreements and satisfied in all material respects all the
conditions on its part to be performed or satisfied under each
of the Basic Documents at or prior to the Closing Date, (iii)
there has been no material adverse change in the condition
(financial or other), earnings, business, properties or
prospects of Access whether or not arising from transactions in
the ordinary course of business, except as set forth or
contemplated in the Prospectus, and (iv) nothing has come to
such officers' attention that would have such officer believe
that the Access Offering Materials contain any untrue statement
of a material fact or omit to state any material facts required
to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
Access shall attach to such certificate a true and
correct copy of its certificate of incorporation, as
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appropriate, and bylaws which are in full force and effect on
the date of such certificate and a certified true copy of the
resolutions of its Board of Directors with respect to the
transactions contemplated herein.
I. The Representative shall have received from
Stroock & Stroock & Lavan, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to
the validity of the Offered Certificates and such other related
matters as the Representative may require.
J. The Representative shall have received from
counsel to the Trustee a favorable opinion dated the Closing
Date and satisfactory in form and substance to the
Representative and counsel for the Representative, to the
effect that:
(i) The Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing
under the laws of the State of New York.
(ii) The Trustee has full corporate trust power and
authority to enter into and perform its obligations under
the Pooling Agreement and to execute, issue, countersign
and deliver the Offered Certificates.
(iii) The Pooling Agreement has been duly
authorized, executed and delivered by the Trustee, and constitutes a
legal, valid and binding obligation of the Trustee
enforceable against the Trustee, in accordance with its
terms, except that as to enforceability such enforcement
may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
the rights of creditors generally and (B) be limited by
general principles of equity (whether considered in a
proceeding at law or in equity).
(iv) The Certificates have been duly authorized,
executed and authenticated by the Trustee on the date
hereof on behalf of the Trust in accordance with the
Pooling Agreement.
(v) The execution, delivery and performance of the
Pooling Agreement and the Certificates by the Trustee will
not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the
Trustee pursuant to the terms of the articles of
association or the by-laws of the Trustee or any statute,
rule, regulation or order of any governmental agency or
body, or any court having jurisdiction over the Trustee or
its property or assets or any agreement or instrument
known
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to such counsel, to which the Trustee is a party or by which the Trustee
or any of its respective property or assets is bound.
(vi) No authorization, approval, consent or order
of, or filing with, any state or federal court or
governmental agency or authority is necessary in connection with the
execution, delivery and performance by the Trustee of the
Pooling Agreement or the Offered Certificates.
K. The Trustee shall have furnished to the
Representative a certificate of the Trustee, signed by one or
more duly authorized officers of the Trustee, dated the Closing
Date, as to the due authorization, execution and delivery of
the Pooling Agreement by the Trustee and the acceptance by the
Trustee of the trusts created thereby and the due execution and
delivery of the Certificates by the Trustee thereunder and such
other matters as the Representative shall reasonably request.
L. The Representative shall have received (i) a
comfort letter, dated the date of this Agreement, of KPMG Peat
Marwick LLP confirming that they are independent public
accountants with respect to the Companies within the meaning of
the Securities Act and the Rules and Regulations, substantially
in the form of the draft to which the Representative and the
Companies have previously agreed and otherwise in form and
substance satisfactory to the Representative, the Companies and
their respective counsel and (ii) on the Closing Date, a bring
down comfort letter, dated the date of delivery thereof, of
KPMG Peat Marwick LLP confirming that they are independent public
accountants with respect to the Companies within the meaning of
the Securities Act and the Rules and Regulations, consistent
with the letter delivered pursuant to clause (i) above and
otherwise in form and substance satisfactory to the
Representative, the Companies and their respective counsel.
M. The Class A-1, Class A-2, Class A-3, Class A-4
and Class A-5 Certificates shall have been rated "Aaa" by
Moody's Investors Service, Inc. ("Moody's") and "AAA" by Fitch
Investors Service, Inc. ("Fitch"); the Class A-6 Certificates
shall have been rated at least "Aa3" by Moody's and "AA-" by
Fitch; and the Class B-1 Certificates shall have been rated at
least "Baa3" by Moody's and "BBB-" by Fitch.
N. The Representative shall have received copies of
letters dated as of the Closing Date, from Moody's and Fitch
stating the current ratings of the Offered Certificates as set
forth in Section M above.
O. The Representative shall have received from
Dewey Ballantine, counsel to the Sponsor, the Seller and Access, a
favorable opinion, dated the Closing Date and satisfactory in
form and substance to the Representative and counsel for the
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Representative, as to true sale matters relating to the
transaction.
P. The Representative shall have received evidence
satisfactory to it and counsel for the Representative that (i)
immediately prior to the transfer of the Contracts to the
Seller, Access owned the Contracts free and clear of all Liens,
and (ii) immediately prior to the transfer of the Contracts to
the Trust, the Seller owned the Contracts free and clear of all
Liens.
Q. The Representative shall have received evidence
satisfactory to it and counsel for the Representative that, on
or before the Closing Date, UCC-1 financing statements have
been filed in the appropriate filing offices reflecting the
transfer of the Contracts and the proceeds thereof (i) from Access to
the Seller, and (ii) from the Seller to the Trust.
R. The Representative shall have received copies of
all opinions delivered to either Moody's or Fitch in connection
with the transactions contemplated by this Agreement and such
opinions shall be addressed to the Representative.
S. The Representative shall have received evidence
satisfactory to it and counsel for the Representative that with
respect to each Land Secured Contract, assignments from the
Seller to the Trustee have been duly executed and delivered to
the Trustee.
T. All proceedings in connection with the
transactions contemplated by this Agreement, and all documents
incident hereto, shall be reasonably satisfactory in form and
substance to the Representative and counsel for the
Representative, and the Representative and counsel for the
Representative shall have received such other information,
opinions, certificates and documents as they may reasonably
request in writing.
U. The Prospectus and any supplements thereto shall
have been filed (if required) with the Commission in accordance
with the rules and regulations under the Act and Section 2
hereof, and prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
If any condition specified in this Section 7 shall
not have been fulfilled when and as required to be fulfilled, (i)
this Agreement may be terminated by the Representative by
notice to each of the Companies at any time at or prior to the
Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Section 8 and
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(ii) the provisions of Section 8, the indemnity set forth in
Section 9, the contribution provisions set forth in Section 10
and the provisions of Sections 12 and 15 shall remain in effect.
Section 8. Payment of Expenses. Access agrees to
pay the following expenses incident to the performance of the
Companies' obligations under this Agreement, (i) the filing of
the Registration Statement and all amendments thereto, (ii) the
duplication and delivery to the Underwriters, in such
quantities as the Underwriters may reasonably request, of copies of this
Agreement, (iii) the preparation, issuance and delivery of the
Certificates, (iv) the fees and disbursements of Dewey
Ballantine, special counsel to the Companies, any other counsel
to any of the Companies and KPMG Peat Marwick, accountants of
the Companies (excluding the fees and disbursements of KPMG
Peat Marwick related to providing comfort in connection with the
Access - Provided Information), (v) the qualification of the
Offered Certificates under securities and Blue Sky laws and the
determination of the eligibility of the Offered Certificates
for investment in accordance with the provisions hereof, including
filing fees and the fees and disbursements of Stroock & Stroock
& Lavan, counsel to the Underwriters, in connection therewith
and in connection with the preparation of any Blue Sky survey,
(vi) the printing and delivery to the Underwriters, in such
quantities as the Underwriters may reasonably request, of
copies of the Registration Statement and Prospectus and all
amendments and supplements thereto, and of any Blue Sky survey, (vii) the
duplication and delivery to the Underwriters, in such
quantities as the Underwriters may reasonably request, of copies of the
Pooling Agreement and the other transaction documents,
(viii) the fees charged by nationally recognized statistical rating
agencies for rating the Offered Certificates, and (ix) the fees
and expenses of the Trustee and its counsel.
If this Agreement is terminated by the Representative
in accordance with the provisions of Section 7, Access shall
reimburse the Underwriters for all reasonable third-party
out-of-pocket expenses, including the reasonable fees and
disbursements of Stroock & Stroock & Lavan, counsel for the
Underwriters.
Section 9. Indemnification. A. (x) The Sponsor
agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls such Underwriter within the
meaning of the Securities Act or the Exchange Act, from and against
any and all loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to,
any loss, claim, damage, liability or action relating to
purchases and sales of the Offered Certificates), to which such
Underwriter or any such controlling person may become subject,
under the Securities Act or the Exchange Act or otherwise,
insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged
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untrue statement of a material fact contained in the
Registration Statement, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(iii) any untrue statement or alleged untrue statement of a
material fact contained in the Base Prospectus and in the
section of the Prospectus Supplement titled "The Sponsor" or
(iv) the omission or alleged omission to state therein a
material fact required to be stated or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading and shall reimburse each such
Underwriter and each such controlling person promptly upon
demand for any documented legal or documented other expenses
reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that the foregoing indemnity with respect to any such
untrue statement or omission shall not inure to the benefit of
such Underwriter if the Sponsor shall sustain the burden of
proving that the person asserting against such Underwriter the
loss, liability, claim, damage or expense purchased any of the
Offered Certificates which are the subject thereof and was not
sent or given a copy of the appropriate Prospectus (or the
appropriate Prospectus as amended or supplemented), if required
by law, at or prior to the written confirmation of the sale of
such Offered Certificates to such person and the untrue
statement or omission was corrected in the appropriate
Prospectus (or the appropriate Prospectus as amended or
supplemented).
(y) Access agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls such
Underwriter within the meaning of the Securities Act or the
Exchange Act, from and against any and all loss, claim, damage
or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the
Offered certificates), to which such Underwriter or any such
controlling person may become subject, under the Securities Act
or the Exchange Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material
fact contained in the Access Offering Materials or (ii) the
omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading and shall reimburse such Underwriter
and each such controlling person promptly upon demand for any
documented legal or documented other expenses reasonably
incurred by such Underwriter or such controlling person in
connection with the investigating or defending or preparing to
defend against any such loss, claim, damage,
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liability or action as such expenses are incurred; provided, however, that the
foregoing indemnity with respect to any such untrue statement or omission shall
not inure to the benefit of such Underwriter if Access shall sustain the burden
of proving that the person asserting against such Underwriter the loss,
liability, claim, damage or expense purchased any of the Offered Certificates
which are the subject thereof and was not sent or given a copy of the
appropriate Prospectus (or the appropriate Prospectus as amended or
supplemented), if required by law, at or prior to the written confirmation of
the sale of such Offered Certificates to such person and the untrue statement or
omission was corrected in the appropriate Prospectus (or the appropriate
Prospectus as amended or supplemented).
The foregoing indemnity agreement is in addition to
any liability which the Sponsor, the Seller, or Access may
otherwise have to any Underwriter or any controlling person of
any Underwriter.
B. Each Underwriter, severally and not jointly,
agrees to indemnify and hold harmless the Companies, the
directors and the officers of the Sponsor who signed the
Registration Statement, and each person, if any, who controls
the Sponsor, the Seller or Access within the meaning of the
Securities Act or the Exchange Act against any and all loss,
claim, damage or liability, or any action in respect thereof,
to which the Sponsor, the Seller or Access or any such director,
officer or controlling person may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement,
(ii) the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, (iii) any untrue statement
or alleged untrue statement of a material fact contained in the
Prospectus or (iv) the omission or alleged omission to state in
the Prospectus a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but
in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written
information furnished to the Sponsor, the Seller or Access by such
Underwriter specifically for inclusion therein, and shall
reimburse the Sponsor, the Seller or Access, as the case may
be, promptly on demand, and any such director, officer or
controlling person for any documented legal or other documented
expenses reasonably incurred by the Sponsor, the Seller or
Access, or any director, officer or controlling person in
connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed
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that the only such information furnished by any Underwriter to
the Sponsor, the Seller or Access consists of the Underwriter
Information as previously defined.
The foregoing indemnity agreement is in addition to
any liability which the Underwriters, severally and not
jointly, may otherwise have to the Sponsor, the Seller or Access or any
such director, officer or controlling person.
C. Promptly after receipt by any indemnified party
under this Section 9 of notice of any claim or the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against any indemnifying party
under this Section 9, promptly notify the indemnifying party in
writing of the claim or the commencement of that action;
provided, however, that the failure to notify an indemnifying
party shall not relieve it from any liability which it may have
under this Section 9 except to the extent it has been
materially prejudiced by such failure; and provided, further, that the
failure to notify any indemnifying party shall not relieve it
from any liability which it may have to any indemnified party
otherwise than under this Section 9.
If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the
indemnified party, unless such indemnified party reasonably
objects to such assumption on the ground that there may be
legal defenses available to it which are different from or in
addition to those available to such indemnifying party. After
notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action,
except to the extent provided in the next following paragraph,
the indemnifying party shall not be liable to the indemnified
party under this Section 9 for any fees and expenses of counsel
subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of
investigation.
Any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless: (i) the
employment thereof has been specifically authorized by
the indemnifying party in writing; (ii) such indemnified party
shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from
or additional to those available to the indemnifying party and in
the reasonable judgment of such counsel it is advisable for
such indemnified party to employ separate counsel; or (iii) the
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indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified
party, it being understood, however, the indemnifying party shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys (in addition to local
counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Representative, if
the indemnified parties under this Section 9 consist of the
Underwriters or any of their controlling persons, or by the
Sponsor, the Seller or Access if the indemnified parties under
this Section 9 consist of the Sponsor, the Seller or Access or
any of their respective directors, officers or controlling
persons, but in either case reasonably satisfactory to the
indemnified party.
Each indemnified party, as a condition of the
indemnity agreements contained in Sections 9A and B, shall use
its best efforts to cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party
shall be liable for any settlement of any such action effected
without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent
or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No
indemnifying party shall, without prior written consent of the
indemnified party, effect any settlement of any pending or
threatened action in respect of which such indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of
such action.
Notwithstanding the foregoing, if (x) the indemnified
party has made a proper request to the indemnifying party for
the payment of the indemnified party's legal fees and expenses,
as permitted hereby, and (y) such request for payment has not
been honored within thirty days, then, for so long as such
request thereafter remains unhonored, the indemnifying party
shall be liable for any settlement entered into by the
indemnified party whether or not the indemnifying party
consents thereto.
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D. Each Underwriter, severally and not jointly,
agrees to provide Access, the Seller and the Sponsor no later
than the date on which the Prospectus Supplement is required to
be filed pursuant to Rule 424 with a copy of any Derived
Information (defined below) for filing with the Commission on
Form 8-K.
E. Each Underwriter, severally and not jointly,
agrees, assuming all Access - Provided Information (defined
below) is accurate and complete in all material respects, to
indemnify and hold harmless the Sponsor, the Seller, Access,
their respective officers and directors and each person who
controls the Sponsor and/or the Seller and/or Access within the
meaning of the Securities Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities
Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement of a
material fact contained in the Derived Information provided by
such Underwriter, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or
defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred. The
obligations of each Underwriter under this Section 9E shall be
in addition to any liability which such Underwriter may
otherwise have.
The procedures set forth in Section 9C shall be
equally applicable to this Section 9E.
For purposes of this Section 9, the term "Derived
Information" means such portion, if any, of the information
delivered to any of the Companies pursuant to Section 9D for
filing with the Commission on Form 8-K as: (i) is not
contained in the Prospectus without taking into account information
incorporated therein by reference; and (ii) does not constitute
Access - Provided Information. Access - Provided Information"
means any computer tape furnished to the Underwriters by Access
concerning the assets comprising the Trust that is used in
whole or in part to generate the Derived Information.
Section 10. Contribution. In order to provide for
just and equitable contribution in circumstances in which the
indemnity agreement provided for in Section 9 is for any reason
held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Sponsor, Access
and the Underwriters, (each, a "Contributing Party") shall
contribute to the aggregate losses, liabilities, claims,
damages
34
<PAGE>
<PAGE>
and expenses of the nature contemplated by said indemnity
agreement incurred by such Contributing Party (i) in such
proportion as is appropriate to reflect the relative benefits
received by such Contributing Party from the offering of the
Offered Certificates or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of such Contributing Party in connection with the
statements or omissions which resulted in the losses,
liabilities, claims, damages and expenses as well as any other
relevant equitable considerations; provided, however, that no
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Contributing Party and the Contributing Parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission and other
equitable considerations.
Notwithstanding the provisions of Section 9 or of
this Section 10, no Underwriter shall be required to be responsible
for any amount in excess of the amount of the underwriter's
discounts and commissions received by such Underwriter in
connection with the Offered Certificates. For purposes of this
Section 10, each person, if any, who controls an Underwriter
within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as each of the
Underwriters, each director of the Sponsor and/or Access, each
officer of the Sponsor who signed the Registration Statement,
and each person, if any, who controls the Sponsor and/or Access
within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as the Sponsor.
The Sponsor, Access and the Underwriters, severally
and not jointly, agree that it would not be just and equitable
if contributions pursuant to this Section 10 were to be
determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above
in this Section 10 shall be deemed to include, for purposes of
this Section 10, any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
35
<PAGE>
<PAGE>
Section 11. Termination. This Agreement shall be
subject to termination in the absolute discretion of the
Representative, by notice given to the Sponsor, the Seller and
Access prior to delivery of and payment for the Offered
Certificates if prior to such time (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Trust, the
Sponsor, the Seller or Access which, in the reasonable judgment
of the Underwriters, materially impairs the investment quality
of the Certificates or makes it impractical or inadvisable to
market the Offered Certificates; (ii) the Offered Certificates
have been placed on credit watch by Moody's or Fitch with
negative implications; (iii) trading in securities generally on
the New York Stock Exchange or the National Association of
Securities Dealers National Market System shall have been
suspended or limited, or minimum prices shall have been
established on such exchange or market system; (iv) a banking
moratorium shall have been declared by either Federal or New
York State authorities; or (v) there shall have occurred any
outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which makes it, in the reasonable
judgment of the Underwriters, impractical or inadvisable to
proceed with the completion of the sale and payment for the
Offered Certificates. Upon such notice being given, the
parties to this Agreement shall (except for any liability arising
before or in relation to such termination) be released and
discharged from their respective obligations under this
Agreement.
Section 12. Failure to Purchase the Offered
Certificates. If any Underwriter defaults in its obligations
to purchase the principal amount of the Offered Certificates
opposite such Underwriter's name on Schedule I hereto and the
aggregate principal amount of the Offered Certificates that
such defaulting Underwriter agreed but failed to purchase does not
exceed 10% of the total principal amount of the Offered
Certificates, the non-defaulting Underwriter may make
arrangements satisfactory to the Sponsor and Access for the
purchase of such Offered Certificates by other Persons,
including the non-defaulting Underwriter, but if no such
arrangements are made by the Closing Date, the non-defaulting
Underwriter shall be obligated to purchase the Offered
Certificates that such defaulting Underwriter agreed but failed
to purchase. If any Underwriter so defaults and the aggregate
principal amount of the Offered Certificates with respect to
such default exceeds 10% of the total principal amount of the
Offered Certificates and arrangements satisfactory to the non-
defaulting Underwriter, the Sponsor and Access for the purchase
of such Offered Certificates by other Persons are not made
within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting
Underwriter, the Seller, the Sponsor and Access, except as
provided in Section 13. As used in this Agreement, the term
"Underwriter" includes any Person substituted for an
Underwriter
36
<PAGE>
<PAGE>
under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
Section 13. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement or contained in
certificates of officers of the Companies submitted pursuant
hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the
Underwriters or their controlling persons, or by or on behalf
of the Companies or any officers, directors or controlling
persons and shall survive delivery of any Offered Certificates to the
Underwriters or any controlling person.
Section 14. Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the
Representative shall be directed to the Asset-Backed Finance
Group at the address set forth on the first page hereof, or
sent by facsimile machine which produces an electronic
confirmation of receipt to One New York Plaza, New York, New
York 10292-2015, Attention: Asset- Backed Finance Group, Fax:
(212) 778-3298. Notices to the Sponsor shall be directed to
the Law Department, or sent by facsimile machine which produces
an electronic confirmation of receipt to 6000 Clearwater Drive,
Minnetonka, Minnesota 55343, Attention: Law Department, Fax:
(612) 984-3898. Notices to the Seller and Access shall be
directed to the Law Department, or sent by facsimile machine
which produces an electronic confirmation of receipt to 1110
Abernathy Road, Suite 1200, Atlanta, Georgia 30328, Attention:
Law Department, Fax: (770) 828-0455.
Section 15. Parties. This Agreement shall inure to
the benefit of and be binding upon the Underwriters and the
Companies, and their respective successors or assigns. Nothing
expressed or mentioned in this Agreement is intended nor shall
it be construed to give any person, firm or corporation, other
than the parties hereto or thereto and their respective
successors and the controlling persons and officers and
directors referred to in Sections 9 and 10 and their heirs and
legal representatives, any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision
herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said
controlling persons and officers and directors and their heirs
and legal representatives (to the extent of their rights as
specified herein and therein) and except as provided above for
the benefit of no other person, firm or corporation. No
purchaser of Offered Certificates from the Underwriters shall
be deemed to be a successor by reason merely of such purchase.
37
<PAGE>
<PAGE>
SECTION 16. GOVERNING LAW AND TIME. THIS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND
SHALL BE CONSTRUED IN ACCORDANCE WITH SUCH LAWS. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
Section 17. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed to be
an original, but together they shall constitute but one
instrument.
Section 18. Headings. The headings herein are
inserted for convenience of reference only and are not intended
to be part of or affect the meaning or interpretation of, this
Agreement.
38
<PAGE>
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement among you, the
Sponsor, the Seller and Access in accordance with its terms.
Very truly yours,
CARGILL FINANCIAL SERVICES CORPORATION
By: /s/ Kenneth M. Duncan
Name: Kenneth M. Duncan
Title: Senior Vice President
ACCESS FINANCIAL RECEIVABLES CORP.
By: /s/ Leslie Zejdlik Foster
Name: Leslie Zejdlik Foster
Title: President
ACCESS FINANCIAL CORP.
By: /s/ Leslie Zejdlik Foster
Name: Leslie Zejdlik Foster
Title: President
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Valerie Kay
Name: Valerie Kay
Title: Vice President
J.P. MORGAN SECURITIES INC.
By: /s/ Peggy Wallace
Name: Peggy Wallace
Title: Vice President
39
<PAGE>
<PAGE>
SCHEDULE I
UNDERWRITING
CLASS A-1
<TABLE>
<CAPTION>
Purchase Price Proceeds to
Percentage the Seller
(excluding Principal (excluding
Underwriters accrued interest) Amount accrued interest)
- ------------ ----------------- --------- -----------------
<S> <C> <C> <C>
Prudential Securities
Incorporated 99.650000% $16,772,000.00 $16,713,298.00
J.P. Morgan Securities Inc. 99.650000% $16,772,000.00 $16,713,298.00
-------------
Total Proceeds to Seller: $33,426,596.00
==============
</TABLE>
CLASS A-2
<TABLE>
<CAPTION>
Purchase Price Proceeds to
Percentage the Seller
(excluding Principal (excluding
Underwriters accrued interest) Amount accrued interest)
- ------------ ----------------- --------- -----------------
<S> <C> <C> <C>
Prudential Securities
Incorporated 99.650000% $13,180,000.00 $13,133,870.00
J.P. Morgan Securities Inc. 99.650000% $13,180.00.00 $13,133,870.00
--------------
Total Proceeds to Seller: $26,267,740.00
==============
</TABLE>
40
<PAGE>
<PAGE>
CLASS A-3
<TABLE>
<CAPTION>
Purchase Price Proceeds to
Percentage the Seller
(excluding Principal (excluding
Underwriters accrued interest) Amount accrued interest)
- ------------ ----------------- --------- -----------------
<S> <C> <C> <C>
Prudential Securities
Incorporated 99.634375% $11,931,000.00 $11,887,377.28
J.P. Morgan Securities Inc. 99.634375% $11,931,000.00 $11,887,377.28
--------------
Total Proceeds to Seller: $23,774,754.56
==============
</TABLE>
CLASS A-4
<TABLE>
<CAPTION>
Purchase Price Proceeds to
Percentage the Seller
(excluding Principal (excluding
Underwriters accrued interest) Amount accrued interest)
- ------------ ----------------- --------- -----------------
<S> <C> <C> <C>
Prudential Securities
Incorporated 99.571875% $6,057,500.00 $ 6,031,566.33
J.P. Morgan Securities Inc. 99.571875% $6,057,500.00 $ 6,031,566.33
--------------
Total Proceeds to Seller: $12,063,132.66
==============
</TABLE>
CLASS A-5
<TABLE>
<CAPTION>
Purchase Price Proceeds to
Percentage the Seller
(excluding Principal (excluding
Underwriters accrued interest) Amount accrued interest)
- ------------ ----------------- --------- -----------------
<S> <C> <C> <C>
Prudential Securities
Incorporated 99.650000% $11,890,500.00 $11,848,883.25
J.P. Morgan Securities Inc. 99.650000% $11,890,500.00 $11,848,883.25
--------------
Total Proceeds to Seller: $23,697,766.50
==============
</TABLE>
41
<PAGE>
<PAGE>
CLASS A-6
<TABLE>
<CAPTION>
Purchase Price Proceeds to
Percentage the Seller
(excluding Principal (excluding
Underwriters accrued interest) Amount accrued interest)
- ------------ ----------------- --------- -----------------
<S> <C> <C> <C>
Prudential Securities
Incorporated 99.650000% $6,382,000.00 $ 6,359,663.00
J.P. Morgan Securities Inc. 99.650000% $6,382,000.00 $ 6,359,663.00
--------------
Total Proceeds to Seller: $12,719,326.00
==============
</TABLE>
CLASS B-1
<TABLE>
<CAPTION>
Purchase Price Proceeds to
Percentage the Seller
(excluding Principal (excluding
Underwriters accrued interest) Amount accrued interest)
- ------------ ----------------- --------- -----------------
<S> <C> <C> <C>
Prudential Securities
Incorporated 99.484375% $8,775,500.00 $ 8,730,251.33
J.P. Morgan Securities Inc. 99.484375% $8,775,500.00 $ 8,730,251.33
--------------
Total Proceeds to Seller: $17,460,502.66
==============
</TABLE>
42
<PAGE>
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Location of
Party Chief Executive Office
----- and Records Office
------------------
<S> <C>
Access Financial Receivables Corp. 1110 Abernathy Road
Suite 1200
Atlanta, GA 30328
Access Financial Corp. 1110 Abernathy Road
Suite 1200
Atlanta, GA 30328
43
</TABLE>
<PAGE>
<PAGE>
POOLING AND SERVICING AGREEMENT
among
ACCESS FINANCIAL CORP.,
as Servicer,
ACCESS FINANCIAL RECEIVABLES CORP.,
as Seller,
CARGILL FINANCIAL SERVICES CORPORATION,
as Sponsor
and
THE BANK OF NEW YORK,
as Trustee
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
TRUST 1996-1
MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATED PASS-THROUGH CERTIFICATES,
SERIES 1996-1
Dated as of May 1, 1996
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS................................................................... 1
SECTION 1.01. General......................................................... 1
SECTION 1.02. Specific Terms.................................................. 2
ARTICLE II ESTABLISHMENT OF TRUST; TRANSFER OF
CONTRACTS.................................................................... 31
SECTION 2.01. Closing......................................................... 31
SECTION 2.02. Assignment of Sponsorship
Agreement....................................................... 32
SECTION 2.03. Acceptance by Trustee........................................... 32
SECTION 2.04. REMIC Provisions................................................ 32
ARTICLE III REPRESENTATIONS AND WARRANTIES................................................ 34
SECTION 3.01. Representations and Warranties
Regarding the Company........................................... 34
SECTION 3.02. Representations and Warranties
Regarding the Seller............................................ 35
SECTION 3.03. Representations and Warranties
Regarding the Sponsor........................................... 36
SECTION 3.04. Representations and Warranties of
the Company Regarding the
Contracts....................................................... 37
SECTION 3.05. Repurchase of Contracts or
Substitution of Contracts for
Breach of Representations and
Warranties...................................................... 38
ARTICLE IV PERFECTION OF TRANSFER AND
PROTECTION OF SECURITY INTERESTS.............................................. 38
SECTION 4.01. Custody of Contracts............................................ 38
SECTION 4.02. Filings......................................................... 39
SECTION 4.03. Name Change or Relocation....................................... 39
SECTION 4.04. Executive Office................................................ 40
SECTION 4.05. Costs and Expenses.............................................. 40
ARTICLE V SERVICING OF CONTRACTS........................................................ 40
SECTION 5.01. Responsibility for Contract
Administration.................................................. 40
SECTION 5.02. Standard of Care................................................ 40
SECTION 5.03. Records......................................................... 41
SECTION 5.04. Inspection; Computer Tape....................................... 41
SECTION 5.05. Certificate Account............................................. 41
SECTION 5.06. Enforcement..................................................... 43
SECTION 5.07. Trustee to Cooperate............................................ 45
SECTION 5.08. Costs and Expenses.............................................. 45
</TABLE>
i
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 5.09. Maintenance of Insurance........................................ 45
SECTION 5.10. Repossession.................................................... 47
SECTION 5.11. [Reserved]...................................................... 47
SECTION 5.12. Retitling; Security Interests................................... 47
SECTION 5.13. Delinquency Advances and
Servicing Advances.............................................. 48
ARTICLE VI REPORTS AND TAX MATTERS....................................................... 49
SECTION 6.01. Monthly Reports................................................. 49
SECTION 6.02. Certificates of Servicing Officer............................... 49
SECTION 6.03. Other Data...................................................... 51
SECTION 6.04. Annual Report of Accountants.................................... 51
SECTION 6.05. Statements to Certificateholders................................ 51
SECTION 6.06. Payment of Taxes................................................ 53
ARTICLE VII SERVICE TRANSFER.............................................................. 55
SECTION 7.01. Event of Termination............................................ 55
SECTION 7.02. Transfer........................................................ 56
SECTION 7.03. Trustee to Act; Appointment of
Successor....................................................... 56
SECTION 7.04. Notification to Certificate-
holders......................................................... 57
SECTION 7.05. Effect of Transfer.............................................. 57
ARTICLE VIII PAYMENTS...................................................................... 58
SECTION 8.01. Monthly Payments................................................ 58
SECTION 8.02. Permitted Withdrawals from the
Certificate Account............................................. 59
SECTION 8.03. Payments........................................................ 59
ARTICLE IX THE CERTIFICATES.............................................................. 63
SECTION 9.01. The Certificates................................................ 63
SECTION 9.02. Registration of Transfer and
Exchange of Certificates........................................ 64
SECTION 9.03. No Charge; Disposition of Void
Certificates.................................................... 68
SECTION 9.04. Mutilated, Destroyed, Lost or
Stolen Certificates............................................. 69
SECTION 9.05. Persons Deemed Owners........................................... 69
SECTION 9.06. Access to List of Certificate-
holders' Names and Addresses.................................... 69
SECTION 9.07. Authenticating Agents........................................... 70
ARTICLE X INDEMNITIES................................................................... 70
SECTION 10.01. Company's Indemnities........................................... 70
SECTION 10.02. Liabilities to Obligors......................................... 70
</TABLE>
ii
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 10.03. Tax Indemnification............................................. 71
SECTION 10.04. Servicer's Indemnities.......................................... 71
SECTION 10.05. Operation of Indemnities........................................ 71
SECTION 10.06. REMIC Tax Matters............................................... 71
ARTICLE XI THE TRUSTEE................................................................... 72
SECTION 11.01. Duties of Trustee............................................... 72
SECTION 11.02. Certain Matters Affecting the
Trustee......................................................... 73
SECTION 11.03. Trustee Not Liable for
Certificates or Contracts....................................... 74
SECTION 11.04. Rights of Certificateholders to
Direct Trustee and to Waive Event
of Termination.................................................. 74
SECTION 11.05. The Servicer to Pay Trustee's
Fees and Expenses............................................... 75
SECTION 11.06. Eligibility Requirements for
Trustee......................................................... 75
SECTION 11.07. Resignation or Removal of Trustee............................... 76
SECTION 11.08. Successor Trustee............................................... 76
SECTION 11.09. Merger or Consolidation of
Trustee......................................................... 77
SECTION 11.10. Tax Returns..................................................... 77
SECTION 11.11. Obligor Claims.................................................. 77
SECTION 11.12. Appointment of Co-Trustee or
Separate Trustee................................................ 78
SECTION 11.13. Agents of Trustee............................................... 79
ARTICLE XII MISCELLANEOUS................................................................. 80
SECTION 12.01. Servicer Not to Assign Duties or
Resign; Delegation of Servicing
Duties.......................................................... 80
SECTION 12.02. Maintenance of Office or Agency................................. 80
SECTION 12.03. Termination..................................................... 81
SECTION 12.04. Acts of Certificateholders...................................... 85
SECTION 12.05. Calculations.................................................... 85
SECTION 12.06. Assignment or Delegation........................................ 85
SECTION 12.07. Amendment....................................................... 86
SECTION 12.08. Notices......................................................... 88
SECTION 12.09. Merger and Integration.......................................... 89
SECTION 12.10. Headings........................................................ 89
SECTION 12.11. Governing Law................................................... 89
</TABLE>
iii
<PAGE>
<PAGE>
<TABLE>
<S> <C> <C>
EXHIBITS A-1, -- Form of Class A-1, A-2, A-3, A-4, A-5
A-2, A-3, A-4 and A-6 Certificates
A-5 and A-6
EXHIBITS B-1 -- Form of Class B-1 and B-2 Certificate
and B-2
EXHIBIT C -- Form of Class C Certificate
EXHIBIT D-1 -- Form of Class RL and RU Certificate
and D-2
EXHIBIT E -- Form of Assignment
EXHIBIT F -- Form of Trustee's Acknowledgment
EXHIBIT G -- Form of Power of Attorney
EXHIBIT H -- Form of Monthly Report
EXHIBIT I -- Form of Certificate of Servicing
Officer
EXHIBIT J -- Form of Report on Agreed Upon
Procedures
EXHIBIT K -- Form of Representation Letter
EXHIBIT L -- Form of Request for Release
EXHIBIT M -- Auction Procedures
</TABLE>
iv
<PAGE>
<PAGE>
POOLING AND SERVICING AGREEMENT, dated as of May 1, 1996,
among ACCESS FINANCIAL RECEIVABLES CORP., a Delaware corporation, as Seller (the
"Seller"), ACCESS FINANCIAL CORP., a Delaware corporation (the "Company"), as
Servicer (the "Servicer"), CARGILL FINANCIAL SERVICES CORPORATION, a Delaware
corporation, as Sponsor (the "Sponsor") and THE BANK OF NEW YORK, a New York
State banking corporation, as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Seller is a bankruptcy-remote company formed for
the sole purpose of transferring certain assets to the Access Financial
Manufactured Housing Contract Trust 1996- 1 (the "Trust") established pursuant
to this Agreement;
WHEREAS, the Seller has entered into the Loan Sale Agreement,
dated as of May 1, 1996, by and between the Seller and the Company for the
purpose of acquiring from the Company the portfolio of the Contracts secured by
certain Manufactured Homes;
WHEREAS, the Sponsor, the Servicer and the Seller have entered
into the Securitization Sponsorship Agreement dated as of May 1, 1996 (the
"Sponsorship Agreement") pursuant to which the Sponsor has agreed to create the
Trust and to direct the Trust to acquire the Contracts and related property;
WHEREAS, the Company is willing to act as the Servicer
hereunder; and
WHEREAS, the parties hereto wish to set forth the terms and
conditions pursuant to which the Trust will acquire the Contracts and the
Company will manage and service the Contracts;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. General. For the purpose of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
the terms defined in this Article include the plural as well as the singular,
the words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any
<PAGE>
<PAGE>
particular Article, Section or other subdivision, and Section references refer
to Sections of the Agreement.
SECTION 1.02. Specific Terms.
"Accelerated Principal" means, as to any Remittance Date, the
lesser of (x) the excess, if any, on such Remittance Date of (i) the Required
Overcollateralization Amount over (ii) the Overcollateralization Amount as of
such Remittance Date, calculated for purposes of this definition after giving
effect to all distributions of the Formula Principal Distribution Amount
pursuant to Section 8.03(a)(1)-(7) on such Remittance Date, but without taking
into account the "Accelerated Principal" component thereof and (y) the sum of
(i) the Class C Distribution Amount as of such Remittance Date and (ii) if the
Company or a wholly-owned subsidiary of the Company acted as the Servicer for
the immediately preceding Collection Period, the Monthly Servicing Fee as of
such Remittance Date.
"Advance Payment" means any payment by an Obligor in advance
of the Collection Period in which it would be due under such Contract and which
payment is not a Principal Prepayment.
"Advisor" has the meaning set forth in Section 12.03(d)
hereof.
"Affiliate" of any specified Person means any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" or
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement.
"Amount Available" means, as to any Remittance Date, an amount
equal to (a) the sum of (i) any amounts on deposit in the Certificate Account as
of the close of business on the day preceding the related Determination Date and
(ii) any amounts required to be deposited in the Certificate Account on the
Business Day immediately preceding such Remittance Date pursuant to Section 5.09
and Section 5.13(a), reduced by (b) the sum, as of such date, of (x) the Amount
Held for Future Distribution on such date and (y) amounts permitted to be
withdrawn by the Trustee from the Certificate Account pursuant to clauses (b) -
(e), inclusive, of Section 8.02 on such Remittance Date.
2
<PAGE>
<PAGE>
"Amount Held For Future Distribution" means, as to any
Determination Date, the total of the amounts held in the Certificate Account on
the day preceding such Determination Date on account of any Advance Payments
then on deposit in the Certificate Account, together with amounts then on
deposit in the Certificate Account representing (x) Scheduled Payments on the
Contracts due during the Collection Period in which such Determination Date
occurs and (y) unscheduled collections received during the Collection Period in
which such Determination Date occurs.
"Applicants" has the meaning assigned in Section 9.06.
"Assumption Fee" means any assumption or other similar fee
paid by the Obligor on a Contract.
"Auction Call Date" means the first Remittance Date on which
the Servicer could exercise its optional termination right as provided in
Section 12.03(c) hereof.
"Authenticating Agent" means any authenticating agent
appointed pursuant to Section 9.07.
"Average Sixty-Day Delinquency Ratio Test" means, to be
considered "satisfied" for any Remittance Date, that the arithmetic average of
the Sixty-Day Delinquency Ratios for such Remittance Date and for the two
immediately preceding Remittance Dates is less than or equal to 5%.
"Average Thirty-Day Delinquency Ratio Test" means, to be
considered "satisfied" for any Remittance Date, that the arithmetic average of
the Thirty-Day Delinquency Ratios for such Remittance Date and for the two
immediately preceding Remittance Dates is less than or equal to 7%.
"Book-Entry Certificate" means any Certificate registered in
the name of the Depository or its nominee ownership of which is reflected on the
books of the Depository or on the books of a person maintaining an account with
such Depository (directly or as an indirect participant in accordance with the
rules of such Depository).
"Business Day" means any day other than (a) a Saturday or a
Sunday, or (b) another day on which banking institutions in the city in which a
Person is taking action hereunder are authorized or obligated by law, executive
order or governmental decree to be closed.
"Certificate" means a Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate, Senior, Class
A-6, Class B, Class C or Residual Certificate.
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"Certificate Account" means the account established and
maintained pursuant to Section 5.05.
"Certificate Interest Distribution Amount" means, as to any
Remittance Date, the sum of the Senior Interest Distribution Amount, the Class
A-6 Interest Distribution Amount, the Class B-1 Interest Distribution Amount and
the Class B-2 Interest Distribution Amount for such Remittance
Date.
"Certificate Owner" means the person who is the beneficial
owner of a Book-Entry Certificate.
"Certificate Principal Balance" means, with respect to the
Class A-1 Certificates, the Class A-1 Principal Balance; with respect to the
Class A-2 Certificates, the Class A-2 Principal Balance; with respect to the
Class A-3 Certificates, the Class A-3 Principal Balance; with respect to the
Class A-4 Certificates, the Class A-4 Principal Balance; with respect to the
Class A-5 Certificates, the Class A-5 Principal Balance; with respect to the
Class A-6 Certificates, the Class A-6 Principal Balance; with respect to the
Class B-1 Certificates, the Class B-1 Principal Balance; and with respect to the
Class B-2 Certificates, the Class B-2 Principal Balance.
"Certificate Register" means the register maintained pursuant
to Section 9.02(a).
"Certificate Registrar" or "Registrar" means the registrar
appointed pursuant to Section 9.02(a).
"Certificateholder" or "Holder" means the person in whose name
a Certificate is registered on the Certificate Register, except that, solely for
the purposes of giving any consent, waiver, request or demand pursuant to this
Agreement, any Certificate registered in the name of the Company or any
Affiliate shall be deemed not to be outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite Percentage Interest necessary to effect any such consent, request,
waiver or demand has been obtained; provided, however, that, solely for the
purpose of determining whether the Trustee is entitled to rely upon any such
consent, waiver, request or demand, only Certificates which the Trustee knows to
be so owned shall be so disregarded.
"Class," "Senior Class," "Class A-6," "Class B" or "Class C"
means pertaining to each Class of Senior Certificates, Class A-6 Certificates,
Class B Certificates and/or Class C Certificates, as the case may be.
"Class A Principal Balance Test" will be considered
"satisfied" for any Remittance Date, that the fraction,
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expressed as a percentage, (x) the numerator of which is the sum of (i) the
Senior Principal Balance on such Remittance Date, before taking into account all
distributions of principal to the Senior Certificateholders on such Remittance
Date and (ii) the Class A-6 Principal Balance on such Remittance Date, before
taking into account all distributions of principal to Class A-6
Certificateholders on such Remittance Date and (y) the denominator of which is
the Pool Scheduled Principal Balance as of the close of the second preceding
Collection Period, is less than 63.51%.
"Class A OC Stepdown Funded Portion" means, with respect to
any Remittance Date, the lesser of (x) the excess of (i) the OC Stepdown Amount
for such Remittance Date over (ii) the Class B OC Stepdown Funded Portion for
such Remittance Date and (y) the Senior Percentage of the Formula Principal
Distribution Amount for such Remittance Date.
"Class A-1 Certificate" means any one of the Class A-1
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-1 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Principal Balance" means, as to any Remittance
Date, the Original Class A-1 Principal Balance less all amounts previously
distributed to Holders of Class A-1
Certificates on account of principal.
"Class A-1 Remittance Rate" means 6.400% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-2 Certificate" means any one of the Class A-2
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-2 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Principal Balance" means, as to any Remittance
Date, the Original Class A-2 Principal Balance less all amounts previously
distributed to Holders of Class A-2
Certificates on account of principal.
"Class A-2 Remittance Rate" means 6.750% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-3 Certificate" means any one of the Class A-3
Certificates authenticated by the Trustee substantially in
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the form set forth in Exhibit A-3 hereto and evidencing an interest designated
as a "regular interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-3 Principal Balance" means, as to any Remittance
Date, the Original Class A-3 Principal Balance less all amounts previously
distributed to Holders of Class A-3
Certificates on account of principal.
"Class A-3 Remittance Rate" means 6.975% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-4 Certificate" means any one of the Class A-4
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-4 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Principal Balance" means, as to any Remittance
Date, the Original Class A-4 Principal Balance less all amounts previously
distributed to Holders of Class A-4
Certificates on account of principal.
"Class A-4 Remittance Rate" means 7.300% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-5 Certificate" means any one of the Class A-5
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-5 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-5 Principal Balance" means, as to any Remittance
Date, the Original Class A-5 Principal Balance less all amounts previously
distributed to Holders of Class A-5 Certificates on account of principal.
"Class A-5 Remittance Rate" means 7.575% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-6 Certificate" means any one of the Class A-6
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-6 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for the purposes of the REMIC Provisions.
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"Class A-6 Distribution Amount" means, as to any Remittance
Date, the lesser of (a) the Amount Available less the Senior Distribution Amount
and (b) the Class A-6 Formula Distribution Amount for such Remittance Date.
"Class A-6 Formula Distribution Amount" means, as to any
Remittance Date, an amount equal to the sum of (a) the Class A-6 Interest
Distribution Amount for such Remittance Date, and (b) if such Remittance Date is
on or after the date on which the Senior Principal Balance has been reduced to
zero, the Senior Percentage of the Formula Principal Distribution Amount;
provided, however, that the aggregate of all amounts distributed for all
Remittance Dates pursuant to clause (b) shall not exceed the Original Class A-6
Principal Balance.
"Class A-6 Interest Distribution Amount" means, as to the
Class A-6 Certificates and any Remittance Date, the sum of (i) one month's
interest at the Class A-6 Remittance Rate on the Class A-6 Principal Balance
calculated immediately prior to such Remittance Date and (ii) the Unpaid Class
A-6 Interest Shortfall, if any, with respect to such Remittance Date.
"Class A-6 Principal Balance" means, as to any Remittance
Date, the Original Class A-6 Principal Balance less all amounts previously
distributed to Holders of Class A-6 Certificates on account of principal.
"Class A-6 Interest Deficiency Amount" means, as to the Class
A-6 Certificates and any Remittance Date, the excess, if any, of (i) the Class
A-6 Interest Distribution Amount on such Remittance Date and (ii) the amount
available for distribution to the Class A-6 Certificateholders pursuant to
Section 8.03(a)(4)(i) and (ii) on such Remittance Date.
"Class A-6 Interest Shortfall" means, as of any Remittance
Date, the difference, if any, between (A) the sum of (1) the amount distributed
to Holders of the Class A-6 Certificates on such Remittance Date pursuant to
Section 8.03(a)(4)(i) and (ii) and (2) any amount distributed to the Holders of
the Class A-6 Certificates by virtue of the operation of Section 8.03(b) and (B)
the Class A-6 Interest Distribution Amount.
"Class A-6 Remittance Rate" means 7.975% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on such
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate for such Remittance Date.
"Class B Certificate" means any one of the Class B-1 and Class
B-2 Certificates authenticated by the Trustee substantially in the form set
forth in Exhibits B-1 and B-2
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hereto and evidencing an interest designated as a "regular interest" in the
Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Cross-over Date" means the later of:
(A) the Remittance Date in June 2001 and
(B) the first Remittance Date on which the sum of
(i) the Senior Principal Balance on such
Remittance Date (before taking into account
any distributions to be made on such
Remittance Date) and (ii) the Class A-6
Principal Balance on such Remittance Date
(before taking into account any distributions
to be made on such Remittance Date) (such sum
expressed as a percentage of the Pool
Scheduled Principal Balance as of the end of
the second preceding Collection Period) is
less than 63.51%.
"Class B Percentage" means:
(i) as to any Remittance Date prior to the Class B
Cross-over Date, 0%
(ii) as to any Remittance Date on or after the
Class B Cross-Over Date and on which any Class
B Principal Distribution Test is not
satisfied, 0%,
(iii) subject to clause (iv) below, as to any
Remittance Date on or after the Class B
Cross-over Date and on which each Class B
Principal Distribution Test is satisfied, the
percentage equal to 100% minus the Senior
Percentage for such Remittance Date and
(iv) as to any Remittance Date after the Senior Principal
Balance and the Class A-6 Principal Balance have both
been reduced to zero, 100%.
"Class B OC Stepdown Funded Portion" means, with respect to
any Remittance Date, the lesser of (x) the OC Stepdown Amount for such
Remittance Date and (y) the Class B Percentage of the Formula Principal
Distribution Amount of such Remittance Date.
"Class B Portion of Class B Principal Test Maintenance Amount"
means, with respect to any Remittance Date, the excess of (x) the Class B
Principal Test Maintenance Amount for such Remittance Date over (y) the Class C
Portion of Class B Principal Test Maintenance Amount for such Remittance Date.
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"Class B Principal Test Maintenance Amount" means, with
respect to any Remittance Date on and prior to the Remittance Date on which both
the Senior Principal Balance and the Class A-6 Principal Balance have been
reduced to zero, the excess of (x) $3,239,614 over (y) the sum of the Class B
Principal Balance and the Overcollateralization Amount on such Remittance Date,
after taking into account all distributions to be made with respect to the Class
B and Class C Certificates on such Remittance Date (other than any deductions
from such distributions on account of the Class C Portion of the Class B
Principal Test Maintenance Amount or the Class B Portion of the Class B
Principal Test Maintenance Amount).
"Class B Principal Balance" means, as to any Remittance Date,
the sum of the Class B-1 Principal Balance and the Class B-2 Principal Balance.
"Class B Principal Balance Test" will be considered
"satisfied" for any Remittance Date, that the sum of the Class B Principal
Balance and the Overcollateralization Amount as of such Remittance Date, before
giving effect to distributions on such Remittance Date, is greater than or equal
to $3,239,614.
"Class B Principal Distribution Test" means, as to any
Remittance Date, each of the Average Sixty-Day Delinquency Ratio Test, the
Average Thirty-Day Delinquency Ratio Test, the Cumulative Realized Losses Test,
the Class B Principal Balance Test, the Class A Principal Balance Test and the
Current Realized Losses Test.
"Class B-1 Certificate" means any one of the Class B-1
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit B-1 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC provisions.
"Class B-1 Distribution Amount" means, as to any Remittance
Date, the lesser of (a) the Amount Available less the sum of the Senior
Distribution Amount and the Class A-6 Distribution Amount and (b) the Class B-1
Formula Distribution Amount for such Remittance Date.
"Class B-1 Formula Distribution Amount" means, as to any
Remittance Date, an amount equal to the sum of (a) the Class B-1 Interest
Distribution Amount for such Remittance Date, and (b) if such Remittance Date is
on or after the Class B Cross-over Date, the Class B Percentage of the Formula
Principal Distribution Amount; provided, however, that the aggregate of all
amounts distributed for all Remittance Dates pursuant to clause (b) shall not
exceed the Original Class B-1 Principal Balance.
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"Class B-1 Interest Deficiency Amount" means, as to the Class
B-1 Certificates and any Remittance Date, the excess, if any, of (i) the Class
B-1 Interest Distribution Amount for such Remittance Date and (ii) the amount
available for distribution to the Class B-1 Certificateholders pursuant to
Section 8.03(a)(5)(i) and (ii) on such Remittance Date.
"Class B-1 Interest Distribution Amount" means, as to any
Remittance Date, the sum of (i) one month's interest at the Class B-1 Remittance
Rate on the Class B-1 Principal Balance as calculated immediately prior to such
Remittance Date and (ii) the "Unpaid Class B-1 Interest Shortfall", if any, with
respect to such Remittance Date.
"Class B-1 Interest Shortfall" means, as to any Remittance
Date, the difference, if any, between (A) the sum of (1) the amount distributed
to Holders of the Class B-1 Certificates pursuant to Section 8.03(a)(a)(5)(i)
and (ii), and (2) any amount distributed to the Holders of the Class B-1
Certificates by virtue of the operation of Section 8.03(b) and (B) the Class B-1
Interest Distribution Amount.
"Class B-1 Principal Balance" means, as to any Remittance
Date, the original Class B-1 Principal Balance less all amounts previously
distributed to Holders of Class B-1 Certificates on account of principal.
"Class B-1 Remittance Rate" means 8.040% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class B-2 Certificate" means the Class B-2 Certificate
authenticated by the Trustee substantially in the form set forth in Exhibit B-2
hereto and evidencing an interest designated as a "regular interest" in the
Upper-Tier REMIC for purposes of the REMIC provisions.
"Class B-2 Distribution Amount" means, as to any Remittance
Date, the lesser of (a) the Amount Available less the sum of the Senior
Distribution Amount, the Class A-6 Distribution Amount and the Class B-1
Distribution Amount and (b) the Class B-2 Formula Distribution Amount for such
Remittance Date.
"Class B-2 Formula Distribution Amount" means, as to any
Remittance Date, an amount equal to the sum of (a) the Class B-2 Interest
Distribution Amount for such Remittance Date and (b) if such Remittance Date is
after the Class B-1 Principal Balance has been reduced to zero, the Class B
Percentage of the Formula Principal Distribution Amount; provided, however, that
the aggregate of all amounts
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distributed for all Remittance Dates pursuant to clause (b) shall not exceed the
Original Class B-2 Principal Balance.
"Class B-2 Interest Deficiency Amount" means, as to the Class
B-2 Certificates and any Remittance Date, the excess, if any, of (i) the Class
B-2 Interest Distribution Amount for such Remittance Date over (ii) the amount
available for distribution to the Class B-2 Certificateholders pursuant to
Section 8.03(a)(6)(i) and (ii) on such Remittance Date.
"Class B-2 Interest Distribution Amount" means, as to any
Remittance Date, the sum of (i) one month's interest at the Class B-2 Remittance
Rate on the Class B-2 Principal Balance as calculated immediately prior to such
Remittance Date and (ii) the Unpaid Class B-2 Interest Shortfall, if any, with
respect to such Remittance Date.
"Class B-2 Interest Shortfall" means, as to any Remittance
Date, the difference, if any, between (A) the sum of (1) the amount distributed
to the Holders of the Class B-1 Certificates pursuant to Section 8.03(a)(6)(i)
and (ii), and (2) any amount distributed to the Holders of the Class B-2
Certificates by virtue of the operation of Section 8.03(b) and (B) the Class B-2
Interest Distribution Amount.
"Class B-2 Principal Balance" means, as to any Remittance
Date, the original Class B-2 Principal Balance less all amounts previously
distributed to Holders of Class B-2 Certificates on account of principal.
"Class B-2 Remittance Rate" means that annual percentage rate
of interest set forth in a written notice delivered to the Trustee and the
Sponsor by the Servicer within ten consecutive days of the Startup Day, computed
on the basis of a 360-day year of twelve 30-day mouths, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class C Certificate" means the Class C Certificate
authenticated by the Trustee substantially in the form set forth in Exhibit C
hereto and evidencing an interest designated as a "regular interest" in the
Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Distribution Amount" means, as to the Class C
Certificates and any Remittance Date, the lesser of (x) the Class C Formula
Distribution Amount and (y) the Amount Available after making the distributions
described in clauses (1)-(9) of Section 8.03(a) on such Remittance Date.
"Class C Formula Distribution Amount" means, as to the Class C
Certificates and any Remittance Date, the excess, if any, of (i) the product of
(x) one-twelfth of the Weighted
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Average Net Contract Rate as of the beginning of the immediately preceding
Collection Period and (y) the Pool Scheduled Principal Balance as of the
beginning of the immediately preceding Collection Period over (ii) the
Certificate Interest Distribution Amount for such Remittance
Date.
"Class C Portion of Class B Principal Test Maintenance Amount"
means, with respect to any Remittance Date, the lesser of (x) the Class B
Principal Test Maintenance Amount for such Remittance Date and (y) the OC
Stepdown Amount for such Remittance Date.
"Class LT1 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT2 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT3 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT4 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT5 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT6 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT7 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT8 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class RL Certificates" means, those certificates representing
certain residual rights to distributions from the Lower-Tier REMIC in
substantially the form set forth as Exhibit D-1 hereto.
"Class RU Certificates" means, those certificates representing
certain residual rights to distributions from the Upper-Tier REMIC in
substantially the form set forth as Exhibit D-2 hereto.
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"Closing Date" means May 29, 1996.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Period" means, with respect to any Remittance
Date, the calendar month prior to the month in which such Remittance Date
occurs.
"Computer Tape" means the computer tape or other electronic
format generated by the Company which provides information relating to the
Contracts and which was used by the Company in selecting the Contracts.
"Contracts" means the manufactured housing installment sales
contracts and installment loan agreements, including any Land Secured Contracts,
described in the List of Contracts and constituting part of the corpus of the
Trust, which Contracts are to be assigned and conveyed by the Seller to the
Trust; such term includes, without limitation, all related security interests
and any and all rights to receive payments which are due pursuant thereto on or
after the Cutoff Date, but excluding any rights to receive payments which are
due pursuant thereto prior to the Cut-off Date.
"Contract File" means, as to each Contract: (a) the original
copy of the Contract, (b) either (i) the original title document for the related
Manufactured Home or a duplicate certified by the appropriate governmental
authority which issued the original thereof or the application for such title
document or (ii) if the laws of the jurisdiction in which the related
Manufactured Home is located do not provide for the issuance of title documents
for manufactured housing, other evidence of ownership of the related
Manufactured Home which is customarily relied upon in such jurisdiction as
evidence of title to a manufactured housing unit, (c) evidence of one or more of
the following types of perfection of the security interest in the related
Manufactured Home granted by such Contract, as appropriate: (i) notation of such
security interest on the title document, (ii) a financing statement meeting the
requirements of the UCC, with evidence of filing indicated thereon, or (iii)
such other evidence of perfection of a security interest in a manufactured
housing unit as is customarily relied upon in the jurisdiction in which the
related Manufactured Home is located, (d) the assignment of the Contract from
the originator (if other than the Company) to the Company and (e) any extension,
modification or waiver agreement(s). "Contract File" means, as to each Land in
Lieu or Land-Home Contract, (a) - (e) above and the original related Mortgage
with evidence of recording thereon.
"Contract Rate" means, with respect to any particular Contract,
the rate of interest specified in that
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Contract and computed on a precomputed basis with an actuarial rebate of
unearned interest upon prepayment.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Agreement is
located at the address set forth in Section 12.08.
"Counsel for the Company" means Dewey Ballantine or other
legal counsel for the Company.
"Cumulative Realized Losses" means, as to any Remittance Date,
the sum of the Realized Losses for that Remittance Date and each preceding
Remittance Date since the Cut-off Date.
"Cumulative Realized Losses Test" means, to be considered
"satisfied" for any Remittance Date:
(i) if such Remittance Date occurs between June 1, 2000
and May 31, 2001, that the Cumulative Realized Losses
as of such Remittance Date are less than or equal to
7% of the Cut-off Date
Pool Principal Balance;
(ii) if such Remittance Date occurs between June 1, 2001
and May 31, 2002, that the Cumulative Realized Losses
as of such Remittance Date are less than or equal to
8% of the Cut-off Date Pool Principal Balance; and
(iii) if such Remittance Date occurs after June 1, 2002
that the Cumulative Realized Losses as of such
Remittance Date are less than or equal to 9% of the
Cut-off Date Pool Principal Balance.
"Current Realized Loss Ratio" means, as to any Remittance
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate Realized Losses during the twelve immediately preceding Collection
Periods, and the denominator of which is the arithmetic average of the Pool
Scheduled Principal Balance as of the last day of the twelfth preceding
Collection Period and the Pool Scheduled Principal Balance as of the close of
the related Collection Period.
"Current Realized Losses Test" means, to be considered
"satisfied" for any Remittance Date, that the Current Realized Loss Ratio for
such Remittance Date is less than or equal to 2.75% if Access Financial Corp.
(or any permitted successor thereto) is the Servicer, or 2.25%, if it is not
then the Servicer.
"Cut-off Date" means May 1, 1996.
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"Cut-off Date Pool Principal Balance" means $161,980,708.
"Cut-off Date Principal Balance" means, as to any Contract,
the unpaid principal balance thereof at the Cut-off Date after giving effect to
all installments of principal due prior thereto.
"Defaulted Contract" means a Contract with respect to which
the Servicer has commenced repossession or foreclosure procedures, made a sale
of such Contract to a third party for repossession, foreclosure or other
enforcement, or as to which there was a payment delinquent 180 or more days
(excluding any Contract deemed delinquent solely because the Obligor's required
monthly payment was reduced as a result of bankruptcy or similar proceedings).
"Delinquency Advance" shall have the meaning set forth in
Section 5.13(a) hereof.
"Depository" means the initial Depository, The Depository
Trust Company, the nominee of which is CEDE & CO., as the registered Holder of:
(i) one Class A-1 Certificate evidencing
$33,544,000 in initial aggregate principal
balance of the Class A-1 Certificates,
(ii) one Class A-2 Certificate evidencing
$26,360,000 in initial aggregate principal
balance of the Class A-2 Certificates,
(iii) one Class A-3 Certificate evidencing
$23,862,000 in initial aggregate principal
balance of the Class A-3 Certificates,
(iv) one Class A-4 Certificate evidencing
$12,115,000 in initial aggregate principal
balance of the Class A-4 Certificates,
(v) one Class A-5 Certificate evidencing
$23,781,000 in initial aggregate principal
balance of the Class A-5 Certificates,
(vi) one Class A-6 Certificate evidencing
$12,764,000 in initial aggregate principal
balance of the Class A-6 Certificates, and
(vii) one Class B-1 Certificate evidencing
$17,551,000 in initial aggregate principal
balance of the Class B-1 Certificates,
and any permitted successor depository. The Depository shall at all times be a
"clearing corporation" as defined in Section
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8-102(3) of the Uniform Commercial Code of the State of New York.
"Depository Participant" means a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" means the third Business Day prior to
each Remittance Date during the term of this Agreement.
"Disqualified Organization" has the meaning assigned in
Section 9.02(b)(3).
"Distribution Amount" means, with respect to the Senior
Certificates, the Senior Distribution Amount; with respect to the Class A-6
Certificates, the Class A-6 Distribution Amount; with respect to the Class B-1
Certificates, the Class B-1 Distribution Amount; with respect to the Class B-2
Certificates, the Class B-2 Distribution Amount and with respect to the Class C
Certificates, the Class C Distribution Amount.
"Due Date" means, as to any Contract, the date of the month on
which the scheduled monthly payment for such Contract is due.
"Electronic Ledger" means the electronic master record of
installment sale contracts and installment loan agreements of the Company.
"Eligible Account" means, at any time, an account which is
either of the following: (i) an account maintained with an Eligible Institution
or (ii) a trust account (which shall be a "segregated trust account") maintained
with the corporate trust department of a federal or state chartered depository
institution or trust company with trust powers and acting in its fiduciary
capacity for the benefit of the Trustee hereunder, which depository institution
or trust company shall have capital and surplus of not less than $50,000,000 and
the securities of such depository institution (or, if such depository
institution is a subsidiary of a bank holding company system and such depository
institution's securities are not rated, the securities of the bank holding
company) shall have a credit rating from each of Moody's and Fitch (if rated by
Fitch) in one of its generic credit rating categories which signifies investment
grade; or (iii) an account that will not cause Moody's or Fitch to downgrade or
withdraw its then-current rating assigned to any Class of Certificates then
rated by Moody's or Fitch, as confirmed in writing by Moody's and Fitch.
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"Eligible Institution" means (i) any depository institution
(which may be the Trustee or an Affiliate of the Trustee) the deposits of which
are insured to the full extent permitted by law by the Federal Deposit Insurance
Corporation, whose commercial paper, long-term deposits or long-term unsecured
senior debt has a rating of F-1 by Fitch and P-1 by Moody's in the case of
commercial paper or in one of the two highest rating categories by Fitch and
Moody's in the case of long term deposits or long term unsecured senior debt,
and which is subject to examination by federal or state authorities or (ii) a
depository institution otherwise acceptable to Fitch and Moody's.
"Eligible Investments" has the meaning assigned in Section
5.05(b).
"Eligible Servicer" means the Company, its Permitted
Successors pursuant hereto, or any Person qualified to act as Servicer of the
Contracts under applicable federal and state laws and regulations, which Person
(i) services not less than an aggregate of $100,000,000 in outstanding principal
amount of manufactured housing conditional sales contracts and installment loan
agreements and (ii) has serviced manufactured housing conditional sales
contracts and installment loan agreements for at least three years; provided,
that this clause (ii) shall not be a requirement for any Permitted Successor.
"Eligible Substitute Contract" means, as to any Replaced
Contract for which such Eligible Substitute Contract is being substituted
pursuant to Section 3.05(b) of the Loan Sale Agreement, a Contract that (a) as
of the date of its substitution, satisfies all of the representations and
warranties (which, except when expressly stated to be as of origination, shall
be deemed to be determined as of the date of its substitution rather than as of
the Cut-off Date or the Closing Date) in Section 3.02 or Section 3.04 of the
Loan Sale Agreement and does not cause any of the representations and warranties
in Section 3.03 of the Loan Sale Agreement, after giving effect to such
substitution, to be incorrect, (b) after giving effect to the scheduled payment
due in the month of such substitution, has a Scheduled Principal Balance that is
not greater than the Scheduled Principal Balance of such Replaced Contract, (c)
has a Contract Rate that is at least equal to the Contract Rate of such Replaced
Contract and (d) has a remaining term to scheduled maturity that is not greater
than the remaining term to scheduled maturity of the Replaced Contract.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Errors and Omissions Protection Policy" means the employee
errors and omissions policy maintained by the
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Servicer or any similar replacement policy covering errors and omissions by the
Servicer's employees, and meeting the requirements of Section 5.09, all as such
policy relates to Contracts comprising a portion of the corpus of the Trust.
"Event of Termination" has the meaning assigned in Section
7.01.
"Fidelity Bond" means the fidelity bond maintained by the
Servicer or any similar replacement bond, meeting the requirements of Section
5.09, as such bond relates to Contracts comprising a portion of the corpus of
the Trust.
"Final Remittance Date" means the Remittance Date on which the
final distribution in respect of the Certificates will be made pursuant to
Section 12.03.
"Financing Statements" means, collectively, the UCC-1
financing statements filed, (i) with respect to the Company, with the Clerk of
Superior Court of Fulton County, Georgia and (ii) with respect to the Seller,
with the Clerk of Superior Court of Fulton County, Georgia.
"Fitch" means Fitch Investors Service, L.P., or any successor
thereto; provided that if Fitch no longer has a rating outstanding on the Class
A-1 Certificates, nor on the Class A-2 Certificates, nor on the Class A-3
Certificates, nor on the Class A-4 Certificates, nor on the Class A-5
Certificates, nor on the Class A-6 Certificates, nor on the Class B-1
Certificates, then references herein to "Fitch" shall be deemed to the NRSRO
then rating any Class of the Certificates (or, if more than one such NRSRO is
then rating any Class of the Certificates, to such NRSRO as may be designated by
the Servicer), and references herein to ratings by or requirements of Fitch's
shall be deemed to have the equivalent meanings with respect to ratings by or
requirements of such NRSRO.
"Formula Distribution Amount" means, with respect to the
Senior Certificates, the Senior Formula Distribution Amount; with respect to the
Class A-6 Certificates, the Class A-6 Formula Distribution Amount; with respect
to the Class B-1 Certificates, the Class B-1 Formula Distribution Amount; with
respect to the Class B-2 Certificates, the Class B-2 Formula Distribution
Amount; and with respect to the Class C Certificates, the Class C Formula
Distribution Amount.
"Formula Principal Distribution Amount" means, as of any
Remittance Date, the sum of:
(i) all scheduled payments of principal due on
each outstanding Contract during the prior
Collection Period as specified in the
amortization schedule at the time applicable
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thereto (after adjustments for previous Partial
Principal Prepayments but before any adjustment to
such amortization schedule by reason of any
bankruptcy of an Obligor or similar proceeding or
any moratorium or similar waiver or grace period);
plus
(ii) all Partial Principal Prepayments applied
and all Principal Prepayments in Full
received during the prior Collection Period;
plus
(iii) the aggregate Scheduled Principal Balance of
all Contracts that became Liquidated
Contracts during the prior Collection
Period; plus
(iv) the aggregate Scheduled Principal Balance of
all Contracts repurchased on the related
Determination Date pursuant to Section 3.05;
plus
(v) the Accelerated Principal, if any, for such
Distribution Date.
"Hazard Insurance Policy" means, with respect to each
Contract, the policy of fire and extended coverage insurance (and federal flood
insurance, if the Manufactured Home is located in a federally designated special
flood area) required to be maintained for the related Manufactured Home, as
provided in Section 5.09, and which, as provided in said Section 5.09, may be a
blanket mortgage impairment policy maintained by the Servicer in accordance with
the terms and conditions of said Section 5.09.
"Independent" means, when used with respect to any specified
Person, Dewey Ballantine or any Person who (i) is in fact independent of the
Company and the Servicer, (ii) does not have any direct financial interest or
any material indirect financial interest in the Company or the Servicer or in an
Affiliate of either and (iii) is not connected with the Company or the Servicer
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions. Whenever it is provided herein that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such opinion or certificate shall state that the signatory has read this
definition and is Independent within the meaning set forth herein.
"Initial Overcollateralization Amount" means $4,859,421.24.
"Insurance Proceeds" means proceeds paid by any insurer
pursuant to any insurance policy or contract.
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"Land-Home Contract" means a Land Secured Contract as to which
funds are advanced against the Manufactured Home and the real estate.
"Land-in-Lieu Contract" means a Land Secured Contract as to
which the real estate is in lieu of a cash down payment on the Manufactured
Home.
"Land as Additional Collateral Contract" means a Land Secured
Contract as to which the real estate is used as additional collateral for the
purchase of the Manufactured Home.
"Land Secured Contract" means a Contract that is secured by
(i) a security interest in a Manufactured Home and (ii) a mortgage or deed of
trust on real estate on which such Manufactured Home is situated, but such
Manufactured Home is not considered or classified as part of the real estate
under the laws of the jurisdiction in which it is located.
"Liquidated Contract" means any defaulted Contract as to which
the Servicer has determined that all amounts which it expects to recover from or
on account of such Contract have been recovered; provided that any defaulted
Contract in respect of which the related Manufactured Home has been realized
upon and disposed of and the proceeds of such disposition have been received
shall be deemed to be a Liquidated Contract.
"Liquidation Expenses" means out-of-pocket expenses (exclusive
of any overhead expenses) which are incurred by the Servicer in connection with
the liquidation of any defaulted Contract, on or prior to the date on which the
related Manufactured Home is disposed of, including, without limitation, any of
the Servicer's unreimbursed Servicing Advances, including legal fees and
expenses, and any related and unreimbursed expenditures for property taxes,
property preservation or restoration of the property to marketable condition.
"Liquidation Proceeds" means cash (including Insurance
Proceeds) received in connection with the liquidation of defaulted Contracts,
whether through repossession, foreclosure sale or otherwise, including any
rental income realized from the repossessed Manufactured Home.
"List of Contracts" means the list identifying each Contract
constituting part of the corpus of the Trust, which list (a) identifies each
Contract and (b) sets forth as to each Contract (i) the Cut-off Date Principal
Balance, (ii) the amount of monthly payments due from the Obligor, (iii) the
Contract Rate and (iv) the maturity date, and which is attached to the
assignment from the Seller to the Trustee,
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conveying the Seller's right, title and interest in and to the Contracts.
"Loan-to-Value Ratio" means, with respect to any Contract, the
original principal balance thereof divided by the related Value; "Value" means
(a) in the case of a Contract other than a Land-in-Lieu Contract or Land-Home
Contract, the stated cash sale price of the related Manufactured Home, including
sales and other taxes, plus, to the extent financed, filing and recording fees
imposed by law, premiums for related insurance and prepaid finance charges and
(b) in the case of a Land-In-Lieu Contract or a Land-Home Contract, the sum of
"Value" as defined in (a) and the appraised value of the land securing the
Contract.
"Loan Sale Agreement" means the Loan Sale Agreement dated as
of May 1, 1996, among the Servicer and the Seller.
"Lower-Tier Interests" means, as defined in Section 2.04(c)
hereof.
"Lower-Tier REMIC" means the segregated pool of assets held by
the Trust consisting of the Conveyed Property and the Certificate Account.
"Majority Holders" means Senior, Class A-6, Class B-1 and
Class B-2 Certificateholders holding more than 50% of the aggregate Certificate
Principal Balance of the Senior, Class A-6, Class B-1 and Class B-2
Certificates.
"Maturity Date" means the Remittance Date in November, 2026.
"Manufactured Home" means a unit of manufactured housing,
including all accessions thereto, securing the indebtedness of the Obligor under
the related Contract.
"Monthly Report" has the meaning assigned in Section 6.01.
"Monthly Servicing Fee" means, as of any Remittance Date,
one-twelfth of the product of 1.00% and the Pool Scheduled Principal Balance as
of the opening of the immediately preceding Collection Period.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto; provided, that, if Moody's no longer has a rating outstanding
on the Class A-1 Certificates, nor on the Class A-2 Certificates, nor on the
Class A-3 Certificates, nor on the Class A-4 Certificates, nor on the Class A-5
Certificates, nor on the Class A-6 Certificates, nor on the Class B-1
Certificates, nor on the Class B-2 Certificates, then references herein to
Moody's shall be deemed to refer to the NRSRO then rating any Class of the
Certificates (or, if
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more than one such NRSRO is then rating any Class of the Certificates, to such
NRSRO as may be designated by the Servicer), and references herein to ratings by
or requirements of Moody's shall be deemed to have the equivalent meanings with
respect to ratings by or requirements of such NRSRO.
"Mortgage" means the mortgage, deed of trust, security deed or
similar evidence of lien, creating a first lien on an estate in fee simple in
the real property securing a Land Secured Contract.
"Mortgaged Property" means the property subject to the lien of
a Mortgage.
"Net Liquidation Loss" means, as to a Liquidated Contract, the
amount, if any, by which (a) the outstanding principal balance of such
Liquidated Contract plus accrued and unpaid interest thereon to the date on
which such Liquidated Contract became a Liquidated Contract exceeds (b) the Net
Liquidation Proceeds for such Liquidated Contract.
"Net Liquidation Proceeds" means, as to a Liquidated Contract,
all Liquidation Proceeds received on or prior to the last day of the Collection
Period in which such Contract became a Liquidated Contract, net of the sum of
(i) any unreimbursed Delinquency Advances with respect to such Liquidated
Contract and (ii) Liquidation Expenses with respect to such Contract.
"Non-IO Certificates" means the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class B-1 and Class B-2 Certificates.
"Nonrecoverable Delinquency Advance" means any Delinquency
Advance made pursuant to Section 5.13(a) which the Servicer believes, in its
good faith judgment, is not ultimately recoverable from Liquidation Proceeds or
other collections with respect to the related Contract. In determining whether a
Delinquency Advance is nonrecoverable, the Servicer need not take into account
that it might receive any amounts in a deficiency judgment. The determination by
the Servicer that any advance is a Nonrecoverable Advance, shall be evidenced by
an Officer's Certificate of the Servicer delivered to the Trustee and stating
the reasons for such determination.
"NRSRO" means any nationally recognized statistical rating
organization.
"Obligor" means each Person who is indebted under a Contract.
"OC Stepdown Amount" means, with respect to any Remittance
Date prior to the Remittance Date on which the
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Class B-2 Principal Balance has been reduced to zero, the lesser of (x) the
Formula Principal Distribution Amount for such Remittance Date and (y) the
excess of (i) the Overcollateralization Amount as of such Remittance Date,
calculated after giving effect to the distribution of the full Formula Principal
Distribution Amount for such Remittance Date with respect to the Non-IO
Certificates on such Remittance Date over (ii) the Required
Overcollateralization Amount for such Remittance Date.
"Offered Certificate" means a Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate, Senior, Class A-6 or Class B-1,
executed and delivered by the Trustee substantially in the form of Exhibit A-1,
A-2, A-3, A-4, A-5, A-6 or B-1.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, President or any Vice President of the Company and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may, except as expressly provided herein, be salaried counsel for the Company,
acceptable to the Trustee and the Company, provided that any opinion of counsel
relating to the qualification of any REMIC held by the Trust as a REMIC or
compliance with the REMIC Provisions must be an opinion of Independent counsel.
"Original Class A-1 Principal Balance" means $33,544,000.
"Original Class A-2 Principal Balance" means $26,360,000.
"Original Class A-3 Principal Balance" means $23,862,000.
"Original Class A-4 Principal Balance" means $12,115,000.
"Original Class A-5 Principal Balance" means $23,781,000.
"Original Class A-6 Principal Balance" means $12,764,000.
"Original Class B-1 Principal Balance" means $17,551,000.
"Original Class B-2 Principal Balance" means $9,573,000.
"Overcollateralization Amount" means, as to any Remittance
Date, the excess of (x) the Pool Scheduled
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Principal Balance as of the close of business on the last day of the immediately
preceding Collection Period over (y) the sum of the Senior Principal Balance,
the Class A-6 Principal Balance, the Class B-1 Principal Balance and the Class
B-2 Principal Balance on such Remittance Date, after taking into account all
distributions of principal described in clauses (1)-(6) of Section 8.03(a) made
on such Remittance Date.
"Overcollateralization Reduction Amount" means, as to any
Remittance Date (x) prior to the Remittance Date on which the Class B-2
Principal Balance has been reduced to zero, the OC Stepdown Amount, (y) on and
after the Remittance Date on which the Class B-2 Principal Balance has been
reduced to zero, the lesser of (i) the Overcollateralization Amount as of such
Remittance Date and (ii) the Amount Available remaining in the Certificate
Account on such Remittance Date after taking into account all distributions
described in clauses (1) - (10) of Section 8.03(a) on such Remittance Date.
"Partial Principal Prepayment" means (a) any Principal
Prepayment other than a Principal Prepayment in Full and (b) any cash amount
deposited in the Certificate Account pursuant to Section 3.05(b)(iv) of the Loan
Sale Agreement.
"Paying Agent" has the meaning assigned in Section 8.01(c).
"Percentage Interest" means, as to any Certificate, the
percentage interest evidenced thereby in distributions made on the related
Class, such percentage interest being equal to, in the case of the Senior, Class
A-6, Class B-1 and Class B-2 Certificates, the percentage obtained from dividing
the denomination of such Certificate by the aggregate denomination of all
Certificates of the related Class or Classes for which the determination is
being made, which is, in the case of (a) the Senior Certificates, the aggregate
denomination of all Senior Certificates of the related Class (which equals the
Original Class A-1 Principal Balance in the case of a Class A-1 Certificate, the
Original Class A-2 Principal Balance in the case of a Class A-2 Certificate, the
Original Class A-3 Principal Balance in the case of a Class A-3 Certificate, the
Original Class A-4 Principal Balance in the case of a Class A-4 Certificate, and
the Original Class A-5 Principal Balance in the case of a Class A-5
Certificate), (b) the Class A-6 Certificates, the aggregate denomination of all
Class A-6 Certificates (which equals the Original Class A-6 Principal Balance)
and (c) the Class B Certificates, the aggregate denomination of all Class B
Certificates of the related Class (which equals the Original Class B-1 Principal
Balance in the case of a Class B-1 Certificate or the Original Class B-2
Principal Balance in the case of a Class B-2 Certificate) and, in the case of
the Class C and Residual Certificates, being equal to the percentage specified
on the
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face of such Certificate. The aggregate Percentage Interests for each Class of
Certificates shall equal 100%.
"Permitted Successor" means (i) any successor by merger to
Access Financial Corp., (ii) any Affiliate of Access Financial Corp. or (iii)
any successor to Access Financial Corp.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Plan" has the meaning assigned in Section 9.02(b)(2) hereof.
"Pool Factor" means, at any time, the percentage derived from
a fraction, the numerator of which is the aggregate Principal Balance of all
Classes of Certificates at such time and the denominator of which is the Cut-off
Date Pool Principal Balance.
"Pool Scheduled Principal Balance" means, as of any date, the
aggregate Scheduled Principal Balance of all Contracts that were outstanding on
such date.
"Principal Prepayment" means a payment or other recovery of
principal on a Contract (exclusive of Liquidation Proceeds) which is received in
advance of its scheduled due date and applied upon receipt (or, in the case of a
Partial Principal Prepayment, upon the next Due Date on such Contract) to reduce
the outstanding principal amount due on such Contract prior to the date or dates
on which such principal amount is due.
"Principal Prepayment in Full" means any Principal Prepayment
of the entire principal balance of a Contract.
"Realized Losses" means, as to any Remittance Date, the
aggregate Net Liquidation Losses of all Contracts that became Liquidated
Contracts during the immediately preceding Collection Period.
"Record Date" means the last Business Day of the month
immediately preceding the month in which the related Remittance Date occurs.
"REMIC" means a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Provisions" means the provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of the
Code, and related provisions
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and any temporary, proposed or final regulations promulgated thereunder, as the
foregoing may be in effect from time to time.
"Remittance Date" means the fifteenth day of each calendar
month during the term of this Agreement, or if such day is not a Business Day,
the next succeeding Business Day, commencing in June 1996.
"Remittance Rate" means, with respect to the Class A-1
Certificates, the Class A-1 Remittance Rate; with respect to the Class A-2
Certificates, the Class A-2 Remittance Rate; with respect to the Class A-3
Certificates, the Class A-3 Remittance Rate; with respect to the Class A-4
Certificates, the Class A-4 Remittance Rate; with respect to the Class A-5
Certificates, the Class A-5 Remittance Rate; with respect to the Class A-6
Certificates, the Class A-6 Remittance Rate; with respect to the Class B-1
Certificates, the Class B-1 Remittance Rate and with respect to the Class B-2
Certificates, the Class B-2 Remittance Rate.
"Replaced Contract" has the meaning assigned in Section
3.05(a) of the Loan Sale Agreement.
"Representative" means Prudential Securities Incorporated.
"Repurchase Price" has the meaning set forth in Section
3.05(a) of the Loan Sale Agreement.
"Required Overcollateralization Amount" means, with respect to
any Remittance Date, (x) prior to the Class B Cross-over Date, the Initial
Required Overcollateralization Amount, (y) on and after the Class B Cross-over
Date, and as long as each Class B Principal Distribution Test is then satisfied,
the lesser of (i) the Initial Required Overcollateralization Amount and (ii) the
greater of (a) 6% of the then Scheduled Pool Principal Balance and (b) 0.75% of
the Cut-off Date Pool Principal Balance and (z) on and after the Class B
Cross-over Date, if any Class B Distribution Test is not satisfied, the required
level as of the immediately preceding Remittance Date.
"Residual Certificate" means, any Class RL Certificate or any
Class RU Certificate.
"Residual Certificateholder" means the person in whose name a
Residual Certificate is registered on the Certificate Register.
"Responsible Officer" means, with respect to the Trustee, the
chairman and any vice chairman of the board of directors, the president, the
chairman and vice chairman of any executive committee of the board of directors,
every vice
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president, assistant vice president, the secretary, every assistant secretary,
cashier, or any assistant cashier, controller or assistant controller, the
treasurer, every assistant treasurer, every trust officer, assistant trust
officer and every other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by persons who at the time shall
be such officers, respectively, or to whom a corporate trust matter is referred
because of knowledge of, familiarity with, and authority to act with respect to
a particular matter.
"Scheduled Principal Balance" means, as to any Contract and
any Remittance Date or the Cut-off Date, the principal balance of such Contract
as of the Due Date in the Collection Period immediately preceding such
Remittance Date or as of the Due Date immediately preceding the Cut-off Date, as
the case may be, as specified in the amortization schedule at the time relating
thereto (before any adjustment to such amortization schedule by reason of any
bankruptcy of an Obligor or similar proceeding or any moratorium or similar
waiver or grace period) after giving effect to any previous Partial Principal
Prepayments and to the payment of principal due on such Due Date and
irrespective of any delinquency in payment by, or extension granted to, the
related Obligor.
"Selling Entity" has the meaning set forth in Section 4.03
hereof.
"Senior Certificate" means any one of the Class A-1, Class
A-2, Class A-3, Class A-4 and Class A-5 Certificates.
"Senior Distribution Amount" means, as to any Remittance Date,
the lesser of (a) the Amount Available for such Remittance Date and (b) the
Senior Formula Distribution Amount for such Remittance Date.
"Senior Formula Distribution Amount" means, as to any
Remittance Date, an amount equal to the sum of (a) the Senior Interest
Distribution Amount for such Remittance Date and (b) the Senior Percentage of
the Formula Principal Distribution Amount; provided, however, that the aggregate
of all amounts distributed for all Remittance Dates pursuant to clause (b) shall
not exceed the sum of the Original Class A-1 Principal Balance, the Original
Class A-2 Principal Balance, the Original Class A-3 Principal Balance, the
Original Class A-4 Principal Balance and the Original Class A-5 Principal
Balance.
"Senior Interest Distribution Amount" means, as to each Class
of Senior Certificates and any Remittance Date, the sum of (x) one month's
interest at (i) the Class A-1 Remittance Date on the Class A-1 Principal
Balance, (ii) the Class A-2 Remittance Rate on the Class A-2 Principal Balance,
(iii) the Class A-3 Remittance Rate on the Class A-3 Principal
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Balance, (iv) the Class A-4 Remittance Rate on the Class A-4 Principal Balance
and (v) the Class A-5 Remittance Date on the Class A-5 Principal Balance, in
each case calculated immediately prior to such Remittance Date and (y) the
aggregate Unpaid Senior Interest Shortfall, if any.
"Senior Percentage" means:
(i) as to any Remittance Date prior to the Class B
Cross-over Date, 100%,
(ii) as to any Remittance Date on or after the
Class B Cross-Over Date and on which any Class
B Principal Distribution Test is not
satisfied, 100%,
(iii) as to any Remittance Date on or after the
Class B Cross-over Date and on which each
Class B Principal Distribution Test is
satisfied, a fraction, expressed as a
percentage, the numerator of which is the sum
of the Senior Principal Balance and the Class
A-6 Principal Balance as of such Remittance
Date (before giving effect to any
distributions to be made on such Remittance
Date), and the denominator of which is the
Pool Scheduled Principal Balance at the end of
the second preceding Collection Period.
"Senior Principal Balance" means, as to any Remittance Date,
the sum of the Class A-1 Principal Balance, the Class A-2 Principal Balance, the
Class A-3 Principal Balance, the Class A-4 Principal Balance and the Class A-5
Principal Balance.
"Servicer" means the Company until any Service Transfer
hereunder and thereafter means the new servicer appointed pursuant to Article
VII.
"Service Transfer" has the meaning assigned in Section 7.02.
"Servicing Advance" has the meaning set forth in Section
5.13(b) hereof.
"Servicing File" has the meaning set forth in Section 4.01(a)
hereof.
"Servicing Officer" means any officer of the Servicer involved
in, or responsible for, the administration and servicing of Contracts whose name
appears on a list of servicing officers appearing in an Officer's Certificate
furnished to the Trustee by the Company, as the same may be amended from time to
time.
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"Servicing Transfer" means the completion of the relocation of
the Company's servicing platform from Atlanta, Georgia to St. Louis Park,
Minnesota.
"Sixty-Day Delinquency Ratio" means, as to any Remittance
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate of the outstanding balances of all Contracts that were delinquent 60
days or more as of the end of the prior Collection Period (including Contracts
in respect of which the related Manufactured Homes have been repossessed but are
still in inventory), and the denominator of which is the Pool Scheduled
Principal Balance as of the end of the prior Collection Period.
"Sponsorship Agreement" means the Securitization Sponsorship
Agreement dated as of May 1, 1996 among the Company, the Seller and the Sponsor.
"Subordinate Certificate" means any one of the Class A-6,
Class B or Class C Certificates.
"Termination Price" has the meaning set forth in Section
12.03(b)(i) hereof.
"Thirty-Day Delinquency Ratio" means, as to any Remittance
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate of the outstanding balances of all Contracts that were delinquent 30
days or more as of the end of the prior Collection Period (including Contracts
in respect of which the related Manufactured Homes have been repossessed but are
still in inventory), and the denominator of which is the Pool Scheduled
Principal Balance as of the end of the prior Collection Period.
"Trust" means the trust created by this Agreement, the corpus
of which consists of (a) all the rights, benefits, and obligations arising from
and in connection with each Contract and any related Mortgage, (b) all rights
under any Hazard Insurance Policy relating to a Manufactured Home securing a
Contract for the benefit of the creditor of such Contract and proceeds from the
Errors and Omissions Protection Policy and any blanket hazard policy to the
extent such proceeds relate to any Manufactured Home, (c) all remittances,
deposits and payments made into the Certificate Account and amounts in the
Certificate Account, (d) all proceeds in any way derived from any of the
foregoing items, (e) all rights of the Sponsor under the Sponsorship Agreement
(other than the Unassigned Rights (as defined in Section 4.02 of the Sponsorship
Agreement)) and all rights of the Seller under the Loan Sale Agreement and (f)
all documents contained in the Contract Files.
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"Trustee" means, originally, The Bank of New York and,
thereafter, any duly-appointed successor appointed pursuant to Sections 11.07
and 11.08 hereof.
"Unpaid Class A-6 Interest Shortfall" means, as to any
Remittance Date, the amount, if any, of the Class A-6 Interest Shortfall for the
immediately preceding Remittance Date, plus accrued interest (to the extent
payment thereof is legally permissible) at the Class A-6 Remittance Rate on the
amount thereof from such prior Remittance Date to such current Remittance Date.
"Unpaid Class B-1 Interest Shortfall" means, as to any
Remittance Date, the amount, if any, of the Class B-1 Interest Shortfall for the
immediately preceding Remittance Date, plus accrued interest (to the extent
payment thereof is legally permissible) at the Class B-1 Remittance Rate on the
amount thereof from such prior Remittance Date to such current Remittance Date.
"Unpaid Class B-2 Interest Shortfall" means, as to any
Remittance Date, the amount, if any, of the Class B-2 Interest Shortfall for the
immediately preceding Remittance Date, plus accrued interest (to the extent
payment thereof is legally permissible) at the Class B-2 Remittance Rate on the
amount thereof from such prior Remittance Date to such current Remittance Date.
"Unpaid Senior Interest Shortfall" means, as to each Class of
Senior Certificates and any Remittance Date, the amount, if any, of the Senior
Interest Distribution Amount due but unpaid on the immediately preceding
Remittance Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the related Remittance Rate on the amount thereof from such
prior Remittance Date to such current Remittance Date.
"Unregistered Certificate" means Certificates which are not
registered as evidenced by inclusion in the Register.
"Upper-Tier REMIC" means the segregated pool of assets held by
the Trust consisting of the Lower Tier Interests (except for the RL Lower-Tier
Interest, as set forth in the chart in Section 2.04(c) hereof).
"Weighted Average Net Contract Rate" means, as to any
Remittance Date, a rate equal to (i) the weighted average of the Contract Rates
on outstanding Contracts, weighted by such Contracts' respective Scheduled
Principal Balances and calculated as of the opening of the immediately preceding
Collection Period less (ii) if Access Financial Corp. (or any successor thereto
by merger) is not then the Servicer, 1.00% per annum (representing the Monthly
Servicing Fee).
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ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF CONTRACTS
SECTION 2.01. Closing. (a) In accordance with the terms of the
Sponsorship Agreement, the Sponsor hereby creates a separate trust which shall
be known as the Access Financial Manufactured Housing Contract Certificate Trust
1996-1. The Trust shall be administered pursuant to the provisions of this
Agreement for the benefit of the Certificateholders. In accordance with the
terms of the Sponsorship Agreement, the Sponsor hereby directs the Trust to
acquire the Contracts and upon the Trust's acquisition of the Contracts, to
issue the Certificates.
(b) The Seller hereby transfers, assigns, sets over and
otherwise conveys to the Trustee on behalf of the Trust, by execution of an
assignment substantially in the form of Exhibit E hereto, (1) all the right,
title and interest of the Seller in and to the Contracts, including, without
limitation, the security interests created thereby and any related Mortgages and
all interest and principal due on or with respect to the Contracts (other than
the principal and interest due on the Contracts before the Cut-off Date), (2)
all rights under every Hazard Insurance Policy relating to a Manufactured Home
securing a Contract for the benefit of the creditor of such contract, (3) the
proceeds from the Errors and Omissions Protection Policy and all rights under
any blanket hazard insurance policy to the extent they relate to the
Manufactured Homes, (4) all documents contained in the Contract Files, (5) the
Seller's rights under the Loan Sale Agreement and (6) all proceeds in any way
derived from any of the foregoing (such items, collectively, the "Trust
Estate").
(c) Although the parties intend that the conveyance of the
Seller's right, title and interest in and to the Contracts pursuant to this
Agreement shall constitute a purchase and sale and not a loan, if such
conveyances are deemed to be a loan, the parties intend that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The parties also intend and agree that the Seller shall
be deemed to have granted to the Trustee, and the Seller does hereby grant to
the Trustee, a perfected first-priority security interest in the items
designated in Section 2.01(b) above, and that this Agreement shall constitute a
security agreement under applicable law. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person under any
Certificates, the security interest created hereby shall continue in full force
and effect and the Trustee shall be deemed to be the collateral agent for the
benefit of such Person.
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SECTION 2.02. Assignment of Sponsorship Agreement.
Pursuant to the Sponsorship Agreement, the Sponsor has agreed to create the
Trust and direct the Trust to acquire the Contracts from the Seller. The Sponsor
hereby transfers, assigns, sets over and otherwise conveys to the Trustee on
behalf of the Certificateholders the Sponsor's rights under the Sponsorship
Agreement (other than the Unassigned Rights (as defined in Section 4.02 of the
Sponsorship Agreement).
SECTION 2.03. Acceptance by Trustee. On the Closing
Date, upon the written direction of the Seller, the Trustee shall deliver a
certificate to the Seller substantially in the form of Exhibit F hereto
acknowledging receipt of the Contracts, and further declaring that the Trustee
will administer the Trust Estate in trust, upon the terms herein set forth, for
the use and benefit of all Certificateholders and shall issue to or upon the
order of the Sponsor Certificates representing ownership of a beneficial
interest in 100% of the Trust.
SECTION 2.04. REMIC Provisions. (a) The Trust shall elect that
the Upper-Tier REMIC and the Lower-Tier REMIC shall be treated as REMICs under
Section 860D of the Code. Any inconsistencies or ambiguities in this Agreement
or in the administration of the Trust shall be resolved in a manner that
preserves the validity of such REMIC elections.
(b) The Class A-1 Certificates, the Class A-2 Certificates,
the Class A-3 Certificates, the Class A-4 Certificates, the Class A-5
Certificates and the Class A-6 Certificates, the Class B-1 Certificates, the
Class B-2 Certificates, and the Class C Certificates are hereby designated as
"regular interests" with respect to the Upper- Tier REMIC and the Class RU
Certificates are hereby designated as the single class of "residual interest"
with respect to the Upper-Tier REMIC. The Class LT1, LT2, LT3, LT4, LT5, LT6,
LT7 and LT8 Certificates are hereby designated as "regular interests" with
respect to the Lower-Tier REMIC and the Class RL Certificates are hereby
designated as the single class of "residual interest" with respect to the
Lower-Tier REMIC.
(c) The beneficial ownership interest of the Lower- Tier REMIC
shall be evidenced by the interests (the "Lower- Tier Interests") having the
characteristics and terms as follows:
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<TABLE>
<CAPTION>
Original Final
Class Companion Principal Interest Remittance
Designation Classes Balance Rate Date
<S> <C> <C> <C> <C>
LT-1 A-1, C $33,544,000 (1) November 16, 2026
LT-2 A-2, C 26,360,000 (1) November 16, 2026
LT-3 A-3, C 23,862,000 (1) November 16, 2026
LT-4 A-4, C 12,115,000 (1) November 16, 2026
LT-5 A-5, C 23,781,000 (1) November 16, 2026
LT-6 A-6, C 12,764,000 (1) November 16, 2026
LT-7 B-1, C 17,551,000 (1) November 16, 2026
LT-8 B-2, C 9,573,000 (1) November 16, 2026
RL N/A (2) (2) November 16, 2026
</TABLE>
(1) The Weighted Average Contract Rate.
(2) The RL Certificate has no principal balance and does not bear interest.
The Lower-Tier Interests LT-1, LT-2, LT-3, LT-4, LT-5, LT-6, LT-7 and LT-8 shall
be issued as non-certificated interests and recorded on the records of the
Lower-Tier REMIC as being issued to and held by the Trustee on behalf of the
Upper-Tier REMIC.
On each Payment Date, the Amount Available shall be applied as
principal and interest of particular Lower Tier Interests, other than the RL
Certificate, in amounts corresponding to the aggregate respective amounts
required to be applied as principal and interest of their related Companion
Classes (as set forth above) pursuant to the priorities set forth in Section
8.03 hereof. To the extent of the Amount Available corresponding to
distributions with respect to the Class C Certificates, such portion of the
Amount Available shall be applied pro rata as a distribution on the Lower-Tier
Interests.
No distributions will be made on the Class RL Certificate,
except that any distribution of the proceeds of the final remaining assets of
the Lower Tier REMIC shall be distributed to the Holder thereof upon
presentation and surrender of the Class RL Certificate.
(d) The Closing Date is hereby designated as the "startup day"
of each REMIC within the meaning of Section 860G(a)(9) of the Code.
(e) After the Closing Date, none of the Trustee, the Company,
the Sponsor, the Seller or any Servicer shall (i) accept any contribution of
assets to the Trust (except as expressly provided herein or in the Loan Sale
Agreement), (ii) dispose of any portion of the Trust (except for repossessed
Manufactured Homes or foreclosed real estate and except as otherwise expressly
provided herein or in the Loan Sale Agreement), (iii) engage in any "prohibited
transaction," as defined in Sections 860F(a)(2) and (5) of the Code, (iv) accept
any contribution after the Closing Date that is subject to the tax imposed by
Section 860G(d) of the Code or (v) engage in any activity or enter into any
agreement that
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would result in the receipt by the Trust of any "net income from foreclosure
property" as defined in Section 860G(c)(2) of the Code, unless, prior to any
such action set forth in clauses (i), (ii), (iii), (iv) or (v) the Trustee shall
have received an unqualified Opinion of Counsel, which opinion shall not be an
expense of the Trust, stating that such action will not, directly or indirectly,
(A) adversely affect the status of any REMIC held by the Trust as a REMIC or the
status of the Certificates as "regular interests" therein or of the Residual
Certificates as the sole class of "residual interests" therein, (B) affect the
distributions payable hereunder to the Certificateholders or the Residual
Certificate- holders or (C) result in the imposition of any lien, charge or
encumbrance upon the Trust.
(f) Upon the acquisition of any real property (including
interests in real property), or any personal property incident thereto, in
connection with the default of a Contract, the Servicer and the Trustee (at the
direction of the Servicer) shall take, or cause to be taken, such action as is
necessary to sell or otherwise dispose of such property within such period as is
then required by the Code in order for such property to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, unless the
Servicer and the Trustee receive an Opinion of Counsel to the effect that the
holding by the Trust of such property subsequent to the period then permitted by
the Code will not result in the imposition of any taxes on "prohibited
transactions" of any REMIC held by the Trust, as defined in Section 860F of the
Code, or cause any REMIC held by the Trust to fail to qualify as a REMIC at any
time that the Certificates are outstanding. The Servicer shall manage, conserve,
protect and operate such real property, or any personal property incident
thereto, so that such property will not fail to qualify as "foreclosure
property," as defined in Section 860G(a)(8) of the Code, and that the
management, conservation, protection and operation of such property will not
result in the receipt by any REMIC held by the Trust of any "income from
nonpermitted assets," within the meaning of Section 860F(a)(2)(B) of the Code.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties Regarding
the Company. The Company represents and warrants to the Trustee,
the Sponsor, the Certificateholders that:
(a) Organization and Good Standing. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently engaged. The
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the
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business transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial or
other) of the Company.
(b) Authorization; Binding Obligations. The Company has the
power and authority to make, execute, deliver and perform this Agreement and all
of the obligations of the Company, as Servicer, contemplated under this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Company enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
(c) No Consent Required. The Company is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement or the Sponsorship
Agreement or the Loan Sale Agreement; provided, however, that the Company may be
required to file mortgage assignments and to make filings under the Securities
and Exchange Act of 1934, as amended.
(d) No Violations. The execution, delivery and performance of
this Agreement by the Company will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Company, or constitute a material breach of any
material mortgage, indenture, contract or other agreement to which the Company
is a party or by which the Company may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Company threatened, against the Company or any of its
properties or with respect to this Agreement, the Certificates which, if
adversely determined, would in the opinion of the Company have a material
adverse effect on the transactions contemplated by this Agreement.
(f) Licensing. The Company is licensed or is exempt
from licensing in each state in which Contracts were originated.
SECTION 3.02. Representations and Warranties Regarding
the Seller. The Seller represents and warrants to the Trustee, the
Sponsor, the Certificateholders that:
(a) Organization and Good Standing. The Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently engaged. The
Seller is duly qualified to do business as a foreign corporation and is in good
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standing in each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such qualification and in
which the failure so to qualify would have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the Seller.
(b) Authorization; Binding Obligations. The Seller has the
power and authority to make, execute, deliver and perform this Agreement and all
of the transactions contemplated under this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the Seller enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) No Consent Required. The Seller is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement or the Sponsorship
Agreement; provided, however, that the Company may be required to file mortgage
assignments and to make filings under the Securities and Exchange Act of 1934,
as amended.
(d) No Violations. The execution, delivery and performance of
this Agreement by the Seller will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Seller, or constitute a material breach of any
material mortgage, indenture, contract or other agreement to which the Seller is
a party or by which the Seller may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Seller threatened, against the Seller or any of its
properties or with respect to this Agreement, the Certificates which, if
adversely determined, would in the opinion of the Seller have a material adverse
effect on the transactions contemplated by this Agreement.
(f) No Filings. The Seller has not filed any UCC-1
financing statements against the Contracts.
SECTION 3.03. Representations and Warranties Regarding
the Sponsor. The Sponsor represents and warrants to the Trustee, the
Certificateholders that:
(a) Organization and Good Standing. The Sponsor is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently engaged. The
Sponsor is duly
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qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Sponsor.
(b) Authorization; Binding Obligations. The Sponsor has the
power and authority to make, execute, deliver and perform this Agreement and all
of the transactions contemplated under this Agreement, and to create the Trust
and cause it to make, execute, deliver and perform its obligations under this
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and to cause the Trust to
be created. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Sponsor enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
(c) No Consent Required. The Sponsor is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement; provided, however,
that the Sponsor may be required to make filings under the Securities and
Exchange Act of 1934, as amended.
(d) No Violations. The execution, delivery and performance of
this Agreement by the Sponsor will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Sponsor, or constitute a material breach of any
material mortgage, indenture, contract or other agreement to which the Sponsor
is a party or by which the Sponsor may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Sponsor threatened, against the Sponsor or any of its
properties or with respect to this Agreement, the Certificates which, if
adversely determined, would in the opinion of the Sponsor have a material
adverse effect on the transactions contemplated by this Agreement.
SECTION 3.04. Representations and Warranties of the Company
Regarding the Contracts. Pursuant to Section 2.01(b) hereof, the Seller has
assigned to the Trust all of its right, title and interest in and to the Loan
Sale Agreement. In connection with such assignment, the Company hereby affirms
to the Trust that all representations and warranties of the Company regarding
the Contracts and the Contract Files contained in Sections 3.02, 3.03 and 3.04
of the Loan Sale Agreement are true
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and correct, in all material respects. The Certificateholders may rely on such
representations and warranties to the same extent as if such representations and
warranties were set forth by the Company herein.
SECTION 3.05. Repurchase of Contracts or Substitution of
Contracts for Breach of Representations and Warranties. The Certificateholders
may rely on the repurchase obligation of the Company regarding the Contracts
contained in Section 3.05 of the Loan Sale Agreement to the same extent as if
such obligation was set forth by the Company herein. Furthermore, the Sponsor
hereby guarantees the repurchase obligation set forth therein, if the Company
does not honor such obligation (or deliver an Eligible Substitute Contract, as
permitted by Section 3.05(b) of the Loan Sale Agreement) within 30 days of being
required to do so.
ARTICLE IV
PERFECTION OF TRANSFER AND
PROTECTION OF SECURITY INTERESTS
SECTION 4.01. Custody of Contracts. (a) Subject to the
terms and conditions of this Section, (i) the Trustee shall maintain custody of
the Contracts and (ii) the Company, as Servicer, shall maintain custody of the
remaining items of each Contract File (such items, the "Servicing File"), in
each case for the benefit of the Certificateholders.
(b) The Servicer agrees to maintain the related Servicing
Files at its office where they are currently maintained, or at such other
offices of the Servicer from time to time be identified to the Trustee by
written notice. The Servicer may temporarily move individual Servicing Files or
any portion thereof without notice as necessary to conduct collection and other
servicing activities in accordance with its customary practices and procedures.
(c) As custodian of the Servicing Files, the Servicer
shall have and perform the following powers and duties:
(i) hold the Servicing Files on behalf of the
Certificateholders, maintain accurate records pertaining to each
Contract to enable it to comply with the terms and conditions of this
Agreement, maintain a current inventory thereof;
(ii) implement policies and procedures with respect to persons
authorized to have access to the Servicing Files and the receipting for
Servicing Files taken from their storage area for purposes of servicing
or any other purposes; and
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(iii) attend to all details in connection with maintaining custody
of the Servicing Files on behalf of the Certificate- holders.
(d) In performing its duties under this Section, the Trustee
and the Servicer each agree to act with reasonable care, using that degree of
skill and care that it exercises with respect to similar contracts owned and/or
serviced by it. In acting as custodian of the Servicing Files, the Servicer
agrees further not to assert any beneficial ownership interest in the Servicing
Files. The Servicer agrees to indemnify the Certificateholders for any and all
liabilities, obligations, losses, damages, payments, costs or expenses of any
kind whatsoever which may be imposed on, incurred or asserted against the
Certificateholders as the result of any act or omission by the Servicer relating
to the maintenance and custody of the Servicing Files; provided, however, that
the Servicer will not be liable for any portion of any such amount resulting
from the negligence or willful misconduct of the other, or of any
Certificateholder.
SECTION 4.02. Filings. On or prior to the Closing Date,
the Company shall cause the Financing Statements to be filed. The Servicer shall
cause to be filed all necessary continuation statements of the Financing
Statements. From time to time the Servicer shall take and cause to be taken such
actions and execute such documents as are necessary to perfect and protect the
Certificateholders' interests in the Contracts and their proceeds and the
Manufactured Homes against all other persons, including, without limitation, the
filing of financing statements, amendments thereto and continuation statements,
the execution of transfer instruments and the making of notations on or taking
possession of all records or documents of title. The Servicer will maintain, for
the benefit of the Trust, the first priority perfected security interest in each
Manufactured Home and a first lien on each Mortgaged Property so long as the
related Contract is property of the Trust.
SECTION 4.03. Name Change or Relocation. (a) During
the term of this Agreement, none of the Company or the Seller (each, a "Selling
Entity") shall change its name or identity or relocate its chief executive
office without first giving written notice thereof to the Trustee and the
Servicer. Notwithstanding the foregoing, the parties hereto acknowledge that the
Company and the Seller intend to relocate their chief executive offices to St.
Louis Park, Minnesota in the Fall of 1996. In addition, following any such
change in the name, identity, structure or location of the chief executive
office of a Selling Entity, such Selling Entity shall give written notice of any
such change to Moody's and Fitch.
(b) If any change in a Selling Entity's name or identity or
the relocation of its chief executive office would make any financing or
continuation statement or notice of lien filed under this Agreement seriously
misleading within the meaning of applicable provisions of the UCC or any title
statute or would
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cause any such financing or continuation statement or notice of lien to become
unperfected (whether immediately or with lapse of time), such Selling Entity, no
later than five days after the effective date of such change, shall file, or
cause to be filed, such amendments or financing statements as may be required to
preserve, perfect and protect the Trust's interests in the Contracts and
proceeds thereof and in the Manufactured Homes.
SECTION 4.04. Executive Office. During the term of this
Agreement, each Selling Entity will maintain its chief executive office in one
of the States of the United States.
SECTION 4.05. Costs and Expenses. The Servicer agrees to pay
all reasonable costs and disbursements in connection with the perfection and the
maintenance of perfection, as against all third parties, of the
Certificateholders' right, title and interest in and to the Contracts
(including, without limitation, the security interests in the Manufactured Homes
granted thereby).
ARTICLE V
SERVICING OF CONTRACTS
SECTION 5.01. Responsibility for Contract Administration. The
Servicer will have the sole obligation to manage, administer, service and make
collections on the Contracts and perform or cause to be performed all
contractual and customary undertakings of the holder of the Contracts to the
Obligor. The Company, if it is the Servicer, may delegate some or all of its
servicing duties to a wholly-owned subsidiary of the Company, for so long as
such subsidiary remains, directly or indirectly, a wholly owned subsidiary of
the Company. Notwithstanding any such delegation the Company shall retain all of
the rights and obligations of the Servicer hereunder. The Trustee, at the
request of a Servicing Officer, shall furnish the Servicer with any powers of
attorney or other documents necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder. The Company is
hereby appointed the Servicer until such time as any Service Transfer shall be
effected under Article VII.
SECTION 5.02. Standard of Care. In managing, administering,
servicing and making collections on the Contracts pursuant to this Agreement,
the Servicer will exercise that degree of skill and care consistent with the
degree of skill and care that the Servicer exercises with respect to similar
contracts serviced by the Servicer; provided, however, that (i) such degree of
skill and care shall be at least as favorable as the degree of skill and care
generally applied by servicers of manufactured housing installment sales
contracts for institutional investors and (ii) notwithstanding the foregoing,
the Servicer shall not release or waive the right to collect the unpaid balance
on any Contract.
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SECTION 5.03. Records. The Servicer shall, during the
period it is servicer hereunder, maintain such books of account and other
records as will enable the Trustee to determine the status of each Contract.
SECTION 5.04. Inspection; Computer Tape. (a) At all
times during the term hereof, the Servicer shall afford the Trustee and its
authorized agents reasonable access during normal business hours to the
Servicer's records, which have not previously been provided to the Trust,
relating to the Contracts and will cause its personnel to assist in any
examination of such records by the Trustee or its authorized agents. The
examination referred to in this Section will be conducted in a manner which does
not unreasonably interfere with the Servicer's normal operations or customer or
employee relations. Without otherwise limiting the scope of the examination the
Trustee may make, the Trustee may, but shall not be obligated to, verify the
status of each Contract and review the Electronic Ledger and records relating
thereto for conformity to Monthly Reports prepared pursuant to Article VI and
compliance with the standards represented to exist as to each Contract in this
Agreement.
(b) At all times during the term hereof, the Servicer shall
keep available a copy of the List of Contracts at its principal executive office
for inspection by Certificateholders.
(c) On or before the ninth Business Day of each month, the
Servicer will provide to the Trustee a Computer Tape setting forth a list of all
the outstanding Contracts and the outstanding principal balance of each such
Contract as of the end of the immediately preceding Collection Period, together
with such other information as reasonably required by the Trustee in order to
effect a service transfer.
SECTION 5.05. Certificate Account. (a) On or before
the Closing Date, the Trustee shall establish the Certificate Account on behalf
of the Trust, which must be an Eligible Account. The Certificate Account shall
be entitled "The Bank of New York as Trustee for the benefit of holders of
Access Financial Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1996-1 (Access Financial Corp., Servicer)." The Servicer
shall pay into the Certificate Account as promptly as practicable (but in no
event later than the second Business Day) following receipt thereof all payments
from Obligors and Net Liquidation Proceeds, other than late payment penalty
fees, extension fees and assumption fees, which shall be retained by the
Servicer as additional compensation for servicing the Contracts. Any amounts
reimbursable to the Servicer pursuant to Section 8.02(c)(i) with respect to a
particular Contract may be retained by the Servicer from Liquidation Proceeds.
All amounts paid into the Certificate Account under this Agreement shall be held
in trust for the Trustee and the Certificateholders until payment of any such
amounts is authorized under this Agreement. Only the Trustee may withdraw funds
from the Certificate Account.
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(b) If the Servicer so directs, the institution maintaining
the Certificate Account shall, in the name of the Trustee in its capacity as
such, invest the amounts in the Certificate Account in Eligible Investments that
mature not later than one Business Day prior to the next succeeding Remittance
Date. Once such funds are invested, such institution shall not change the
investment of such funds. All income and gain from such investments shall be
added to the Certificate Account and distributed on such Remittance Date
pursuant to Section 8.03(a). The Trustee shall in no way be liable for losses on
amounts in accordance with the provisions hereof. The Servicer shall direct the
investment of funds in the Certificate Account in Eligible Investments such that
any funds in the Certificate Account not so invested are insured to the extent
permitted by law by the Federal Deposit Insurance Corporation. "Eligible
Investments" are any of the following:
(i) direct obligations of, and obligations fully guaranteed
by, the United States of America, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, or any agency
or instrumentality of the United States of America the obligations of
which are backed by the full faith and credit of the United States of
America and which are noncallable;
(ii)(A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Trustee or any Affiliate of
the Trustee, acting in its commercial capacity) incorporated under the
laws of the United States of America or any State thereof and subject
to supervision and examination by federal and/or state authorities, so
long as, at the time of such investment or contractual commitment
providing for such investment, the commercial paper or other short-term
deposits of such depository institution or trust company (or, in the
case of a depository institution which is the principal subsidiary of a
holding company, the commercial paper or other short-term debt
obligations of such holding company) are rated at least P-1 by Moody's
and at least F-1 by Fitch (if rated by Fitch) and (B) any other demand
or time deposit or certificate of deposit which is fully insured by the
Federal Deposit Insurance Corporation;
(iii) shares of an investment company registered under the
Investment Company Act of 1940, whose shares are registered under the
Securities Act of 1933 and have the highest credit rating then
available from Moody's and Fitch (if rated by Fitch) and whose only
investments are in securities described in clauses (i) and (ii)(A)
above;
(iv) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security issued or
guaranteed by an agency or instrumentality
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of the United States of America, in either case entered into with a
depository institution or trust company (acting as principal) described
in clause (ii)(A) above;
(v) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any State thereof which have a credit rating of at least Aa1
from Moody's and in one of the two highest rating categories from Fitch
(if rated by Fitch) at the time of such investment; provided, however,
that securities issued by any particular corporation will not be
Eligible Investments to the extent that investment therein will cause
the then outstanding principal amount of securities issued by such
corporation and held as part of the corpus of the Trust to exceed 10%
of amounts held in the Certificate Account; and
(vi) commercial paper or money-market funds having a rating of at
least P-1 from Moody's and at least F-1 by Fitch (if rated by Fitch) at
the time of such investment.
Securities not entitled to receive payments of principal
(i.e., "interest-only" securities) shall not be "Eligible Investments."
The Trustee may trade with itself or an Affiliate in the
purchase or sale of such Eligible Investments.
(c) If at any time the Trustee receives notice (from either of
Moody's or Fitch, the Servicer or otherwise) that the Certificate Account has
ceased to be an Eligible Account, the Trustee must, as soon as practicable but
in no event later than 5 Business Days of the Trustee's receipt of such notice,
transfer the Certificate Account and all funds and Eligible Investments therein
to an Eligible Account. Following any such transfer, the Trustee must notify
each of Moody's, Fitch and the Servicer of the location of the Certificate
Account.
SECTION 5.06. Enforcement. (a) The Servicer shall, consistent
with customary servicing procedures and the terms of this Agreement, act with
respect to the Contracts in such manner as will maximize the receipt of
principal and interest on such Contracts and liquidation proceeds with respect
to Liquidated Contracts.
(b) The Servicer may sue to enforce or collect upon Contracts,
in its own name, if possible, or as agent for the Trust. If the Servicer elects
to commence a legal proceeding to enforce a Contract, the act of commencement
shall be deemed to be an automatic assignment of the Contract to the Servicer
for purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Contract on the ground
that it is not a real party in interest or a holder entitled to enforce the
Contract, the Trustee on behalf of the
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Trust shall, at the Servicer's expense, take such steps as the Servicer deems
necessary to enforce the Contract, including bringing suit in its name or the
names of the Certificateholders.
(c) The Servicer shall exercise any rights of recourse against
third persons that exist with respect to any Contract in accordance with the
servicer's usual practice. In exercising recourse rights, the Servicer is
authorized on the Trustee's behalf to reassign the Contract or to resell the
related Manufactured Home to the person against whom recourse exists at the
price set forth in the document creating the recourse.
(d) So long as the Company is the Servicer, the Servicer may
grant to the Obligor on any Contract any rebate, refund or adjustment out of the
Certificate Account that the Servicer in good faith believes is required because
of prepayment in full of the Contract. The Servicer will not permit any
rescission or cancellation of any Contract.
(e) The Servicer may grant to the Obligor on any Contract any
rebate, refund or adjustment out of the Certificate Account that is required
because of an overpayment in connection with the prepayment in full of the
Contract or otherwise. The Servicer may rescind, cancel or make material
modifications of the terms of any Contract (including modifying the amounts and
due dates of scheduled monthly payments); provided that, unless required by
applicable law or to bring Contract into conformity with the representations and
warranties described in Section 3.04 hereof, the Servicer will not permit any
rescission or cancellation of any Contract or any material modification of a
Contract other than in connection with a default or an imminent default on such
Contract unless the Servicer obtains an Opinion of Counsel to the effect that
such modification will not cause any REMIC held by the Trust to fail to qualify
as a REMIC or result in the imposition of taxes on any REMIC held by the Trust
under the REMIC Provisions.
(f) The Servicer may enforce any due-on-sale clause in a
Contract if such enforcement is called for under its then current servicing
policies for obligations similar to the Contracts, provided that such
enforcement is permitted by applicable law and will not adversely affect any
applicable insurance policy. If an assumption of a Contract is permitted by the
Servicer upon conveyance of the related Manufactured Home, the Servicer shall
use its best efforts to obtain an assumption agreement in connection therewith
and add such assumption agreement to the related Contract File.
(g) Any provision of this Agreement to the contrary
notwithstanding, the Servicer shall not agree to the modification or waiver of
any provision of a Contract at a time when such Contract is not in default or
such default is not reasonably foreseeable, if such modification or waiver would
be treated as a taxable exchange under Section 1001 of the Code.
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SECTION 5.07. Trustee to Cooperate. (a) Upon payment
in full on any Contract, the Servicer will notify the Trustee in writing and the
Company (if the Company is not the Servicer) on the next succeeding Remittance
Date by certification of a Servicing Officer (which certification shall include
a statement to the effect that all amounts received in connection with such
payments which are required to be deposited in the Certificate Account pursuant
to Section 5.05 have been so deposited). The Servicer is authorized to execute
an instrument in satisfaction of such Contract and to do such other acts and
execute such other documents as the Servicer deems necessary to discharge the
Obligor thereunder and eliminate the lien on the related real estate. The
Servicer shall determine when a Contract has been paid in full; to the extent
that insufficient payments are received on a Contract credited by the Servicer
as prepaid or paid in full and satisfied, the shortfall shall be paid by the
Servicer out of its own funds.
(b) From time to time as appropriate for servicing and
foreclosure in connection with any Contract, the Trustee shall, upon receipt of
a Request for Release in substantially the form of Exhibit L hereto signed by a
Servicing Officer, cause the original Contract to be released to the Servicer
and shall execute such documents as the Servicer shall deem necessary to the
prosecution of any such proceedings. Upon request of a Servicing Officer, the
Trustee shall perform such other acts as reasonably requested by the Servicer
and otherwise cooperate with the Servicer in enforcement of the
Certificateholders' rights and remedies with respect to Contracts.
(c) The Servicer's receipt of a Contract shall obligate the
Servicer to return the original Contract to the Trustee when its need by the
Servicer has ceased unless the Contract shall be paid in full, liquidated or
repurchased or replaced as described in Section 3.05.
SECTION 5.08. Costs and Expenses. All costs and expenses
incurred by the Servicer in carrying out its duties hereunder, including all
fees and expenses incurred in connection with the enforcement of Contracts
(including enforcement of defaulted Contracts and repossessions of Manufactured
Homes securing such Contracts) shall be paid by the Servicer and the Servicer
shall not be entitled to reimbursement hereunder, except that the Servicer shall
be reimbursed out of the Liquidation Proceeds of a Liquidated Contract for
Liquidation Expenses incurred by it, together with unreimbursed Delinquency
Advances relating thereto and except as provided in Section 5.13(b). The
Servicer shall not incur such liquidation expenses unless it determines in its
good faith business judgment that incurring such expenses will increase the Net
Liquidation Proceeds on the related Contract.
SECTION 5.09. Maintenance of Insurance. (a) Except as
otherwise provided in subsection (b) of this Section 5.09, the Servicer shall
cause to be maintained with respect to each Contract one or more Hazard
Insurance Policies which provide, at a minimum,
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the same coverage as a standard form fire and extended coverage insurance policy
that is customary for manufactured housing, issued by a company authorized to
issue such policies in the state in which the related Manufactured Home is
located and in an amount which is not less than the maximum insurable value of
such Manufactured Home or the principal balance due from the Obligor on the
related Contract, whichever is less; provided, however, that the amount of
coverage provided by each Hazard Insurance Policy shall be sufficient to avoid
the application of any coinsurance clause contained therein; and provided,
further, that such Hazard Insurance Policies may provide for customary
deductible amounts. Each Hazard Insurance Policy caused to be maintained by the
Servicer shall contain a standard loss payee clause in favor of the Servicer and
its successors and assigns. If any obligor is in default in the payment of
premiums on its Hazard Insurance Policy or Policies, the Servicer shall pay such
premiums out of its own funds and may separately add such premium to the
obligor's obligation as provided by the Contract. The amount of any such premium
shall not be added to the remaining principal balance of the Contract, but shall
be tracked by the Servicer separately. If the Obligor does not reimburse the
Servicer for payment of such premiums and the related Contract is liquidated
after a default, the Servicer shall be reimbursed for its payment of such
premiums out of the related Liquidation Proceeds.
(b) The Servicer may, in lieu of causing individual Hazard
Insurance Policies to be maintained with respect to each Manufactured Home
pursuant to subsection (a) of this Section 5.09, and shall, to the extent that
the related contract does not require the Obligor to maintain a Hazard Insurance
Policy with respect to the related Manufactured Home, maintain one or more
blanket insurance policies covering losses on the Obligor's interest in the
Contracts resulting from the absence or insufficiency of individual Hazard
Insurance Policies. Any such blanket policy shall be substantially in the form
and in the amount carried by the Servicer as of the date of this Agreement. The
Servicer shall pay the premium for such policy on the basis described therein
and shall deposit into the Certificate Account from its own funds any deductible
amount with respect to claims under such blanket insurance policy relating to
the Contracts. The Servicer shall not, however, be required to deposit any
deductible amount with respect to claims under individual Hazard Insurance
Policies maintained pursuant to subsection (a) of this Section. If the insurer
under such blanket insurance policy shall cease to be acceptable to the
Servicer, the Servicer shall exercise its best reasonable efforts to obtain from
another insurer a replacement policy comparable to such policy.
(c) With respect to each Manufactured Home that has been
repossessed in connection with a defaulted Contract, the Servicer shall either
(1) maintain one or more Hazard Insurance Policies thereon or (ii) self-insure
such Manufactured Homes and deposit into the Certificate Account from its own
funds any losses caused
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by damage to such Manufactured Home that would have been covered by a Hazard
Insurance Policy.
(d) The Servicer shall keep in force throughout the term of
this Agreement (i) a policy or policies of insurance covering errors and
omissions for failure to maintain insurance as required by this Agreement and
(ii) a fidelity bond. Such policy or policies and such fidelity bond shall be in
such form and amount as is generally customary among Persons which service a
portfolio of manufactured housing installment sales contracts and installment
loan agreements having an aggregate principal amount of $100,000,000 or more and
which are generally regarded as servicers acceptable to institutional investors.
SECTION 5.10. Repossession. Notwithstanding the standard of
care specified in Section 5.02, the Servicer shall commence procedures for the
repossession of any Manufactured Home or the foreclosure upon any Mortgaged
Property or take such other steps that in the Servicer's reasonable judgment
will maximize the receipt of principal and interest or Net Liquidation Proceeds
with respect to the Contract secured by such Manufactured Home subject to the
requirements of the applicable state and federal law, no later than five
Business Days after the time when such Contract becomes a Defaulted Contract.
SECTION 5.11. [Reserved].
SECTION 5.12. Retitling; Security Interests. (a) If,
at any time, a Service Transfer has occurred and the Company is no longer the
Servicer and the new Servicer is unable to foreclose upon a Manufactured Home
because the title document for such Manufactured Home does not show such
Servicer or the Trustee as the holder of the first security interest in the
Manufactured Home, such Servicer shall take all necessary steps to apply for a
replacement title document showing it or the Trustee as the secured party.
(b) If, at any time, the Trustee attempts to foreclose upon a
Manufactured Home and is unable to do so because the title document for such
Manufactured Home does not show the Trustee as the holder of the first security
interest in the Manufactured Home, the Company shall take all steps necessary to
apply for a replacement title document showing it or the Trustee as the secured
party.
(c) In order to facilitate the Servicer's actions, as
described in subsections (a) and (b) of this section, the Company will provide
the Servicer and/or the Trustee with any necessary power of attorney permitting
it to retitle the Manufactured Home, and the Trustee shall be entitled to
enforce the Company's obligations under such subsections by seeking specific
performance thereof.
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(d) If the Servicer is still unable to retitle the
Manufactured Home, the Company will take all actions necessary to act with the
Servicer to foreclose upon the Manufactured Home, including, as appropriate, the
filing of any UCC-1 or UCC-2 financing statements necessary to perfect the
security interest in any Manufactured Home that constitutes a fixture under the
laws of the jurisdiction in which it is located and all actions necessary to
perfect the security interest in any Manufactured Home that is considered or
classified an part of the real estate on which it is located under the laws of
the jurisdiction in which it is located.
(e) The Contract Files for each Land Secured Contract are
required to contain evidence that the Company has a Mortgage on the real
property underlying such Land Secured Contract. Neither the Company, the Seller
nor the Sponsor will be required to prepare, deliver or record any assignments
to the Trustee in recordable form for the Mortgages related to such Land Secured
Contracts. However, on or before the Closing Date, the Company shall deliver to
the Trustee an executed power of attorney substantially in the form of Exhibit G
hereto, authorizing the Trustee to execute and record assignments of Mortgages
securing Land Secured Contracts from the Company to the Trustee in the event
that recordation of such assignments becomes necessary for foreclosure on the
related property by or on behalf of the Trustee. Pursuant to such power of
attorney, at the Servicer's instruction, the Trustee shall execute any such
assignments as are provided to the Trustee by the Servicer. After execution of
any such assignments, the Trustee shall redeliver such assignments to the
Servicer at the Servicer's expense. Any expenses incurred by the Servicer in
connection with the foregoing or in connection with its recordation of
assignments in preparation for a foreclosure on a Land Secured Contract shall
constitute Liquidation Expenses.
SECTION 5.13. Delinquency Advances and Servicing Advances. (a)
If the Servicer has not received all or any portion of any scheduled payment of
principal and interest due during a Collection Period by the related
Determination Date, the Servicer shall deposit to the Certificate Account not
later than 10 a.m. East Coast time on the Business Day prior to the related
Remittance Date the amount of any such deficiency, (such amount being a
"Delinquency Advance"); provided, that the Servicer is only required to make a
Delinquency Advance if the Servicer in its good faith business judgment believes
that such amount will ultimately be recovered on or with respect to the related
Contract.
The Servicer shall be permitted to fund its payment of
Delinquency Advances from its own funds, and from the Amount Held for Future
Distribution then on deposit in the Certificate Account net of amounts thereof
applied pursuant to Section 8.03(b). In any event, to the extent the Servicer
uses any portion of the Amount Held For Future Distribution, the Servicer must
reimburse the Certificate Account by the next Remittance Date (or such later
Remittance Date) to the extent necessary to provide for the required remittance
to Certificateholders on such date.
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Any Delinquency Advance funded by the Servicer with respect to
a particular Contract from its own funds shall be reimbursable to the Servicer
from Liquidation Proceeds and other collections received by the Servicer with
respect to such Contract; provided, that to the extent that any Delinquency
Advance is later determined to be a Nonrecoverable Delinquency Advance, such
amount shall be reimbursable to the Servicer from collections on the Contracts
generally, as provided in Section 8.02(c).
(b) The Servicer will pay all reasonable and customary
"out-of-pocket" costs and expenses (including reasonable legal fees) incurred in
the performance of its servicing obligations including, but not limited to, the
cost of (i) advances made for taxes, insurance, ground rents and other charges
against the related Manufactured Home, (ii) any enforcement or judicial
proceedings, including foreclosures and (iii) the management and liquidation of
REO Property (including, without limitation, realtors' commissions and any
required repairs). Each such expenditure will constitute a "Servicing Advance".
The Servicer may recover Servicing Advances from the Obligors to the extent
permitted by the Contracts or, if not theretofore recovered from the Obligor on
whose behalf such Servicing Advance was made, from Liquidation Proceeds realized
upon the liquidation of the related Contract. The Servicer shall not recover
Servicing Advances from collections on any other Contract; provided, that if not
all invoices relating to the Servicing Advances with respect to a Contract have
been received by the Servicer at the time the Servicer receives collections on
account of the related Contract, the Servicer shall nevertheless deposit all
such collections to the Certificate Account and shall be thereafter permitted to
receive reimbursement from collections on the Contracts generally with respect
to such invoices; provided, further, that in no event shall the Servicer be
cumulatively reimbursed for Servicing Advances with respect to a Contract in an
amount in excess of the Liquidation Proceeds relating to such Contract.
ARTICLE VI
REPORTS AND TAX MATTERS
SECTION 6.01. Monthly Reports. No later than 1:00
p.m. on each Determination Date, the Servicer shall deliver to the Trustee, the
Paying Agent, the Company (if the Company is not the Servicer), the Sponsor,
Moody's and Fitch a "Monthly Report," substantially in the form of Exhibit H
hereto.
SECTION 6.02. Certificates of Servicing Officer. (a) Each
Monthly Report pursuant to Section 6.01 shall be accompanied by a certificate of
a Servicing Officer substantially in the form of Exhibit I, certifying (x) as to
the weighted average number of months in inventory of all repossessed
Manufactured Homes (calculated as of the close of the preceding Collection
Period) and (y) as to the accuracy of the Monthly Report and that no Event of
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Termination or event that with notice or lapse of time or both would become an
Event of Termination has occurred, or if such event has occurred and is
continuing, specifying the event and its status.
(b) (i) For the first Collection Period following the Closing
Date, if the Company is the Servicer, the Company will cause its Internal Audit
staff to perform the steps described in the Report on Agreed Upon Procedures,
attached as Exhibit J hereto. The Company will cause its independent accountants
to re-test these procedures as necessary in order to achieve a level of comfort
with the work performed by the Company's Internal Audit Staff. If the level of
review is within the tolerance levels outlined, the monthly review requirement
shall then be terminated.
(ii) For the first two Collection Periods following
the date which is 60 days after the Servicing
Transfer, if the Company is the Servicer, the
Company will cause its Internal Audit staff to
perform the steps described in the Report on
Agreed Upon Procedures, attached as Exhibit J
hereto. The Company will cause its independent
accountants to re-test these procedures as
necessary in order to achieve a level of comfort
with the work performed by the Company's Internal
Audit Staff. Upon satisfactory results (as
outlined in the Report on Agreed Upon Procedures)
for two consecutive months, the independent
accountants would perform the procedures in their
entirety in the third month without the Internal
Audit assistance considered. If the level of
review in this month is again within the
tolerance levels outlined, the monthly review
requirement shall then be terminated.
In the event that any of the three reviews do not meet the
tolerance levels as outlined, the test work requirement shall revert to the
original standard and resets to three consecutive "clean" reviews within the
acceptable tolerance range before termination of the requirement.
(iii) In addition to the monthly review requirements, an
annual execution of the outlined procedures shall
be performed, beginning (x) in June, 1997, if the
Servicing Transfer has not occurred by April 1,
1997, or (y) in December, 1997, if the Servicing
Transfer has occurred by April 1, 1997 and
continuing annually.
(c) If the Company is the Servicer, the Company shall
give prompt written notice to Moody's and to Fitch of the
occurrence of either of the following:
(i) any change in control of the Servicer; or
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(ii) the departure of either the Servicer's President
or of the Servicer's Vice President of National
Operations.
SECTION 6.03. Other Data. In addition, the Company and (if
different from the Company) the Servicer shall, on request of the Trustee, the
Sponsor, Moody's or Fitch furnish the Trustee, the Sponsor, and/or Moody's or
Fitch such underlying data as may be reasonably requested.
SECTION 6.04. Annual Report of Accountants. On or
before April 30 of each year, commencing April 30, 1997, the Servicer at its
expense shall cause a firm of independent public accountants which is a member
of the American Institute of Certified Public Accountants to make available to
the Trustee, the Sponsor, Moody's and Fitch a report stating that such firm has
examined selected documents and records relating to the Servicer's servicing of
manufactured housing conditional sales contracts, including the contracts
covered by this Agreement, in accordance with the Mortgage Bankers Association
of America's Uniform Single Audit Program for Mortgage Bankers, or any successor
uniform program, and that, on the basis of such examination, such servicing has
been conducted in compliance with the minimum servicing standards identified
therein, except for such significant exceptions or errors in records that, in
the opinion of such firm, generally accepted auditing standards requires it to
report.
SECTION 6.05. Statements to Certificateholders. (a)
The Servicer shall prepare and furnish to the Trustee and the Sponsor the
statements relating to the Certificates, as specified below, on or before the
third Business Day next preceding each Remittance Date.
(b) Concurrently with each distribution charged to the
Certificate Account the Trustee, so long as it has received the Monthly Report
from the Servicer, shall forward or cause to be forwarded by mail to the Sponsor
and to each Holder of a Certificate and (if the Company is not the Servicer) the
Company a statement setting forth the following:
(i) the amount of such distribution to Holders of the
related Class of Certificates allocable to interest,
separately identifying any Unpaid Interest Shortfall
included in such distribution and any remaining
Unpaid Interest Shortfall after giving effect to such
distribution;
(ii) the amount of such distribution to Holders of the
related Class of Certificates allocable to
principal, separately identifying the aggregate
amount of any Principal Prepayments included
therein, the aggregate Scheduled Principal Balance
of all Contracts that became Liquidated Contracts
during the related Collection Period and the
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aggregate Scheduled Principal Balance of all
Contracts repurchased with respect to such
Remittance Date;
(iii) the amount, if any, by which the Formula Distribution
Amount with respect to the related Class for such
Remittance Date exceeds the Distribution Amount with
respect to the related Class for such Remittance
Date;
(iv) the Certificate Principal Balance of the related
Class after giving effect to the distribution of
principal on such Remittance Date;
(v) the Senior Percentage and the Class B Percentage
for such Remittance Date and the following
Remittance Date;
(vi) the Pool Scheduled Principal Balance of the
Contracts as of the close of the related Collection
Period;
(vii) the Pool Factor;
(viii) the number and aggregate principal balances of
Contracts delinquent (a) 30-59 days and (b) 60 or
more days calculated, in each case, as of the close
of business on the last day of the related Collection
Period;
(ix) the number of Manufactured Homes that were
repossessed during the Collection Period ending
immediately prior to such Remittance Date;
(x) the number of Manufactured Homes that were
repossessed but remain in inventory as of the last
day of the Collection Period ending immediately prior
to such Remittance Date;
(xi) the Overcollateralization Amount for such Remittance
Date, after giving effect to the distribution of
principal on such Remittance Date, together with any
Overcollateralization Reduction Amount for such
Remittance Date;
(xii) the Class B Principal Distribution Tests (as set
forth in Exhibit H hereto);
(xiii) the Weighted Average Net Contract Rate of all
outstanding Contracts; and
(xiv) the amount of Delinquency Advances reimbursable to
the Servicer.
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The Trustee and the Servicer shall inform any requesting
Certificateholder, the Sponsor, the Company, Prudential Securities Incorporated
or J.P. Morgan Securities, Inc. inquiring by telephone of the information
contained in the most recent Monthly Report.
In the case of information furnished pursuant to clauses (i)
through (iv) above (except in the case of the Class C and Residual
Certificates), the amounts shall be expressed as a dollar amount per Certificate
with $1,000 denomination.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish or cause to be furnished to each Person
who at any time during the calendar year was the Holder of a Certificate a
statement containing the information with respect to interest accrued and
principal paid on its Certificates during such calendar year. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code as from time to time in force.
SECTION 6.06. Payment of Taxes. The Servicer shall be
responsible for and agrees to prepare, make and file all federal, state, local
or other tax returns, information statements and other returns and documents of
every kind and nature whatsoever required to be made or filed by or on behalf of
the Lower-Tier REMIC and the Upper-Tier REMIC pursuant to the Code and other
applicable tax laws and regulations. Such responsibility shall include (i)
electing to treat each REMIC included in the Trust as a REMIC (which election
shall apply to the taxable period ending December 31, 1996 and each calendar
year thereafter) in such manner as the applicable Treasury regulations may
prescribe, (ii) filing applicable Forms 1066 and Schedule Q and any form
required under section 6050K of the Code, if applicable to REMICs, and (iii)
report to Certificateholders, with respect to the allocation of expenses
pursuant to section 212 of the Code, if and to the extent the Servicer has been
notified in writing as to the identity any Certificateholder with respect to
which such reporting is required by the Code. Each such return, statement and
document shall, to the extent required by the Code or other applicable law, be
signed on behalf of the Lower-Tier REMIC and the Upper-Tier REMIC by the
Trustee. The Trustee shall have no responsibility whatsoever for the accuracy or
completeness of any such return, statement or document. The Servicer agrees to
indemnify the Trustee and hold it harmless for, from, against and in respect to
any and all liability, loss, damage and expense which may be incurred by the
Trustee based upon or as a result of the Trustee's execution of any and all such
tax returns, statements and documents; provided, that the Servicer shall not be
so required to indemnify the Trustee to the extent that any such loss,
liability, etc., results from the Trustee's own negligence or misconduct.
Residual Certificateholders hereby designate the Servicer to be their agent and
to serve as the "tax matters person" on behalf of each REMIC held by the Trust
in the same manner as a partnership may designate a "tax matters partner," as
such term is defined in Section 6231(a) (7) of the Code. The Servicer may, at
its expense,
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retain such outside assistance as it deems necessary in the performance of its
obligations under this paragraph.
Each of the Holders of the Certificates, by acceptance
thereof, agrees to file tax returns consistent with and in accordance with any
elections, decisions or other reports made or filed with regard to federal,
state or local taxes on behalf of the Trust. The Servicer, as the tax matters
person and as agent for the Residual Certificateholders, shall represent the
Trust in connection with all examinations of the Trust's affairs by tax
authorities, including resulting administrative and judicial proceedings. Each
of the Holders of the Certificates, by acceptance thereof, agrees to cooperate
with the Servicer in such matters and to do or refrain from doing any or all
things reasonably required by the Servicer to conduct such proceedings, provided
that no such action shall be required by the Servicer of any Certificateholder
that would entail unnecessary or unreasonable expenses for such
Certificateholder in the performance of such action.
The Residual Certificateholders shall pay, on behalf of the
Lower-Tier REMIC or the Upper-Tier REMIC, as the case may be, in which it has an
interest, any foreign, federal, state or local income, property, excise, sales,
receipts or any other similar or related taxes or charges which may be imposed
upon the Trust or any REMIC held by the Trust or otherwise and shall, to the
extent provided in Section 10.06, be entitled to be reimbursed out of the
Certificate Account or, if such tax or charge results from a failure by the
Company or any Servicer to comply with the provisions of Section 2.04 or this
Section 6.06, the Company or such Servicer, as the case may be, shall indemnify
the Residual Certificateholders for the payment of any such tax or charge. The
Trustee shall be entitled to withhold from amounts otherwise distributable to
the Residual Certificateholders any taxes or charges payable by the Residual
Certificateholders hereunder.
In the event any Residual Certificate is transferred to a
"disqualified organization," within the meaning of Section 860E(e)(5) of the
Code (including any Person described in Section 860E(e)(3) or (6) of the Code),
pursuant to Section 860D(a)(6)(B) of the Code the Servicer, as agent for the
Residual Certificate- holders, shall provide to the Internal Revenue Service and
the persons specified in sections 860E(e)(3) and (6) of the Code all information
necessary for the application of Section 860E(e) and any other applicable
provision of the Code with respect to the transfer of the Certificate to such a
disqualified organization, including, without limitation, a computation showing
the present value of the total anticipated excess inclusions with respect to
such Residual Certificate for periods after the transfer as defined in the REMIC
Provisions. In addition, to the extent required by the REMIC Provisions, the
Company shall, upon the written request of persons designated in Section
860E(e)(3) of the Code, furnish to such requesting party and the Internal
Revenue Service information
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sufficient to compute the present value of anticipated excess inclusions within
60 days of the receipt of such written request.
In performing its duties under this Section, the Servicer,
and, if different, the tax matters person, shall be entitled to rely on
qualified experts retained by the Servicer or the Trustee to provide all
returns, reports, computations and notices required under this Section. In
addition, the Servicer and, if different, the tax matters person, in performing
their duties under this Section, may rely on proposed regulations of the United
States Department of the Treasury.
ARTICLE VII
SERVICE TRANSFER
SECTION 7.01. Event of Termination. "Event of
Termination" means the occurrence of any of the following:
(a) Any failure by the Servicer to make any deposit into the
Certificate Account required to be made hereunder and the continuance of such
failure for a period of five Business Days after the Servicer has become aware,
or should have become aware, that such deposit was required;
(b) Failure on the Servicer's part to observe or perform in
any material respect any covenant or agreement in this Agreement (other than a
covenant or agreement which is elsewhere in this Section specifically dealt
with) which continues unremedied for 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Trustee or to the Servicer and the Trustee by Holders of
Senior Certificates, Class A-6 Certificates and Class B Certificates evidencing,
as to any such Class, Percentage Interests aggregating not less than 25%;
(c) Any assignment by the Servicer of its duties
hereunder, except as specifically permitted hereunder, or any attempt to make
such an assignment;
(d) A court or other governmental authority having
jurisdiction in the premises shall have entered a decree or order for relief in
respect of the Servicer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Servicer, as the case may be, or for any substantial
liquidation of its affairs, and such order remains undischarged and unstayed for
at least 60 days;
(e) The Servicer shall have commenced a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of
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an order for relief in an involuntary case under any such law, or shall have
consented to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian or sequestrator (or other similar official) of the
Servicer or for any substantial part of its property, or shall have made any
general assignment for the benefit of its creditors, or shall have failed to, or
admitted in writing its inability to, pay its debts as they become due, or shall
have taken any corporate action in furtherance of the foregoing; or
(f) The failure of the Servicer to be an Eligible Servicer.
SECTION 7.02. Transfer. (a) If an Event of Termination has
occurred and is continuing, either the Trustee or Certificate- holders with
aggregate Percentage Interests representing more than 50% of the Trust, by
notice in writing to the Servicer (and to the Trustee if given by the
Certificateholders) may terminate all (but not less than all) of the Servicer's
management, administrative, custodial, servicing and collection functions (such
termination being herein called a "Service Transfer"). On receipt of such notice
(or, if later, on a date designated therein), or upon resignation of the
Servicer in accordance with Section 12.01, all authority and power of the
Servicer under this Agreement, whether with respect to the Contracts, the
Servicing Files or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this Section 7.02; and, without limitation, the Trustee is
authorized and empowered to execute and deliver on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments
(including, without limitation, documents required to make the Trustee or a
successor servicer the sole lienholder or legal title holder of record of each
Manufactured Home) and to do any and all acts or things necessary or appropriate
to effect the purposes of such notice of termination. Each of the Company, the
Sponsor and the Servicer agrees to cooperate with the Trustee in effecting the
termination of the responsibilities and rights of the Servicer hereunder,
including, without limitation, the transfer to the Trustee for administration by
it of all cash amounts which shall at the time be held by the Servicer for
deposit, or have been deposited by the Servicer, in the Certificate Account, or
for its own account in connection with its services hereafter or thereafter
received with respect to the Contracts and the execution of any documents
required to make the Trustee or a successor servicer the sole lienholder or
legal title holder of record in respect of each Manufactured Home. The Servicer
shall be entitled to receive any other amounts which are payable to the Servicer
under the Agreement, at the time of the termination of its activities as
Servicer. The Servicer shall transfer to the new servicer (i) the Servicer's
records relating to the Contracts in such electronic form as the new servicer
may reasonably request and (ii) any Contracts and Servicing Files in the
Servicer's possession.
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SECTION 7.03. Trustee to Act; Appointment of Successor. On and
after the time the Servicer receives a notice of termination pursuant to Section
7.02 or the resignation of the Servicer in accordance with Section 12.01, the
Trustee shall be the successor in all respects to the Servicer in its capacity
as servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof and
the Servicer shall be relieved of such responsibilities, duties and liabilities
arising after such Service Transfer; provided, however, that (i) the Trustee
will not assume any obligations of the Company pursuant to Sections 3.04 and
3.05 and (ii) the Trustee shall not be liable for any acts or omissions of the
Servicer occurring prior to such Service Transfer or for an breach by the
Servicer of any of its obligations contained herein or in any related document
or agreement. As compensation therefor, the Trustee shall be entitled to receive
reasonable compensation out of the Monthly Servicing Fee. Notwithstanding the
above, the Trustee may, if it shall be unwilling so to act, or shall, if it is
legally unable so to act, appoint, or petition a court of competent jurisdiction
to appoint, an Eligible Servicer as the successor to the Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer hereunder. Pending appointment of a successor to the Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Contracts as it and such
successor shall agree; provided, however, that no such monthly compensation
shall, without the written consent of 100% of the Certificateholders, exceed the
Monthly Servicing Fee. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
SECTION 7.04. Notification to Certificateholders.
(a) Promptly following the occurrence of any Event of Termination, the Servicer
shall give written notice thereof to the Trustee, the Company, the Seller,
Moody's, Fitch and the Certificateholders at their respective addresses
appearing on the Certificate Register.
(b) Within ten days following any termination or appointment
of a successor to the Servicer pursuant to this Article VII, the Trustee shall
give written notice thereof to the Company,. the Seller, Moody's, Fitch and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
(c) The Trustee shall give written notice to Moody's and Fitch
at least 30 days prior (or two Business Days after the Trustee receives notice
if less than 30 days prior) to the date upon which any Eligible Servicer (other
than the Trustee) is to assume the responsibilities of Servicer pursuant to
Section 7.03, naming such successor Servicer.
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SECTION 7.05. Effect of Transfer. (a) After the
Service Transfer, the Trustee or new Servicer may notify Obligors to make
payments directly to the new Servicer that are due under the Contracts after the
effective date of the Service Transfer.
(b) After the Service Transfer, the replaced Servicer shall
have no further obligations with respect to the management, administration,
servicing or collection of the Contracts and the new Servicer shall have all of
such obligations, except that the replaced Servicer will transmit or cause to be
transmitted directly to the new Servicer for its own account, promptly on
receipt and in the same form in which received, any amounts (properly endorsed
where required for the new Servicer to collect them) received as payments upon
or otherwise in connection with the Contracts.
(c) A Service Transfer shall not affect the rights and duties
of the parties hereunder (including, but not limited to, the indemnities of the
Servicer and the Company pursuant to Article X and Sections 3.04, 3.05, 11.06
and 11.11(f)) other than those relating to the management, administration,
servicing or collection of the Contracts.
ARTICLE VIII
PAYMENTS
SECTION 8.01. Monthly Payments. (a) Subject to the terms of
this Article VIII, each Holder of a Certificate as of a Record Date shall be
paid on the next succeeding Remittance Date by check mailed to such
Certificateholder at the address for such Certificateholder appearing on the
Certificate Register (or, if such Certificateholder holds Certificates with an
aggregate Percentage Interest of at least 10% in the related Class and so
requests, by wire transfer pursuant to instructions delivered to the Trustee at
least ten days prior to such Remittance Date), the sum equal to such
Certificateholder's Percentage Interest of the related Distribution Amount.
Final payment of any Certificate shall be made only upon presentation of such
Certificate at the office or agency of the Paying Agent.
(b) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, which shall credit the amount of such
distribution to the accounts of its Depository Participants in accordance with
its normal procedures. Each Depository Participant shall be responsible for
disbursing such distribution to the Certificate Owners that it represents and to
each indirect participating brokerage firm (a "brokerage firm" or "indirect
participating firm") for which it acts as agent. Each brokerage firm shall be
responsible for disbursing funds to the Certificate Owners that it represents.
All such credits and disbursements with respect to a Book-Entry Certificate are
to be made by the Depository and the Depository Participants in accordance with
the provisions of the Book Entry Certificates. Neither the Trustee, the
Certificate Registrar, the Seller, the
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Company, the Sponsor nor the Servicer shall have any responsibility therefor or
for any required withholdings, except as otherwise provided by applicable law.
To the extent applicable and not contrary to the rules of the Depository, the
Trustee shall comply with the provisions of the forms of the Senior, Class A-6
and Class B-1 Certificates as set forth in Exhibits A-1, A-2, A-3, A-4, A-5, A-6
and B-1 hereto.
(c) The Trustee shall either act as the paying agent or shall
appoint an Eligible Institution to be the paying agent (in either case, the
"Paying Agent") and cause it to make the payments to the Certificateholders
required hereunder. The Trustee shall initially act as Paying Agent. The Trustee
shall require the Paying Agent (if other than the Trustee) to agree in writing
that all amounts held by the Paying Agent for payment hereunder will be held in
trust for the benefit of the Certificateholders and that it will notify the
Trustee of any failure by the Servicer to make funds available to the Paying
Agent for the payment of amounts due on the Certificates.
SECTION 8.02. Permitted Withdrawals from the Certificate
Account. The Trustee may, from time to time as provided herein, make withdrawals
from the Certificate Account of amounts deposited in said account pursuant to
Section 5.05 that are attributable to the Contracts for the following purposes:
(a) to make payments in the amounts and in the manner
provided for in Section 8.03;
(b) to pay to the Company with respect to each Contract or
property acquired in respect thereof that has been repurchased or replaced
pursuant to Section 3.05, all amounts received thereon and not required to be
distributed to Certificateholders as of the date on which the related Scheduled
Principal Balance or Repurchase Price is determined;
(c) to reimburse the Servicer (i) out of Liquidation Proceeds
for Liquidation Expenses incurred by it, to the extent such reimbursement is
permitted pursuant to Sections 5.08 and 5.13, (ii) for Delinquency Advances out
of collections (other than Liquidation Proceeds) on the related Contract, (iii)
for Servicing Advances as provided in the last sentence of Section 5.13(b) and
(iv) for any Nonrecoverable Delinquency Advances first, from collections
including Liquidation Proceeds from the related Contract and then, if such
amounts are not sufficient to reimburse the Servicer, from the Contracts
generally;
(d) to withdraw any amount deposited in the Certificate
Account that was not required to be deposited therein; or
(e) to make any rebates or adjustments deemed necessary
by the Servicer pursuant to Section 5.06(d).
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Since, in connection with withdrawals pursuant to clause (b),
the Company's entitlement thereto is limited to collections or other recoveries
on the related Contract, the Servicer shall keep and maintain separate
accounting, on a Contract by Contract basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such clause.
SECTION 8.03. Payments. (a) On each Remittance Date the
Trustee shall withdraw the Amount Available (as determined on the immediately
preceding Determination Date, and after taking into account all Delinquency
Advances made by the Servicer on such Remittance Date) from the Certificate
Account and apply such funds to make payment in the following order of priority:
1. if neither the Company nor a wholly owned subsidiary
of the Company is the Servicer, to pay the Monthly Servicing fee and
any other compensation owed to the Servicer pursuant to Section 7.02;
2. to pay the Senior Interest Distribution Amount as
follows:
(i) the amount in clause (i) of the definition of
Senior Interest Distribution Amount to the Class
A-1 Certificateholders; the amount in clause (ii)
of the definition of Senior Interest Distribution
Amount to the Class A-2 Certificateholders; the
amount in clause (iii) of the definition of Senior
Distribution Amount to the Class A-3
Certificateholders; the amount in clause (iv) of
the definition of Senior Distribution Amount to
the Class A-4 Certificateholders; the amount in
clause (v) of the definition of Senior
Distribution Amount to the Class A-5 Certificate-
holders, or, if the Amount Available is less than
the sum of the amounts specified in this clause
(i), pro rata to each Class of Senior Certificates
based on the amount of interest payable pursuant
to this clause (i);
(ii) the aggregate Unpaid Senior Interest Shortfall pro
rata to each Class of Senior Certificates based on
the Unpaid Senior Interest Shortfall of each such
Class;
3. after payment of the amounts specified in clauses (1) and
(2) above, the sum of (x) the excess of (a) the Senior Percentage of
the Formula Principal Distribution Amount, over (b) the Class A OC
Stepdown Funded Portion for such Remittance Date, (y) any portion of
the amount described in clause (x) preceding which was due with respect
to the related Class of Senior Certificates on prior Remittance Dates
but which remains unpaid on such Remittance Date and (z) the Class B
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Principal Test Maintenance Amount for such Remittance Date, as follows,
in the following order of priority:
(i) to the Class A-1 Certificateholders until the
Class A-1 Principal Balance has been reduced to
zero;
(ii) to the Class A-2 Certificateholders until the
Class A-2 Principal Balance has been reduced to
zero;
(iii) to the Class A-3 Certificateholders until the
Class A-3 Principal Balance has been reduced to
zero;
(iv) to the Class A-4 Certificateholders until the
Class A-4 Principal Balance has been reduced to
zero;
(v) to the Class A-5 Certificateholders until the
Class A-5 Principal Balance has been reduced to
zero;
4. after payment of the amounts specified in clauses
(1) - (3) above, to the Class A-6 Certificateholders as follows, in the
following order of priority:
(i) the amount in clause (i) of the definition of
Class A-6 Interest Distribution Amount;
(ii) any Unpaid Class A-6 Interest Shortfall;
(iii) the sum of (x) the excess of (a) the Senior
Percentage of the Formula Principal Distribution
Amount over (b) the Class A OC Stepdown Funded
Portion for such Remittance Date, (y) any portion
of the amount described in clause (x) preceding
which was due with respect to the Class A-6
Certificates or prior Remittance Dates but which
remains unpaid on such Remittance Date and (z) the
Class B Principal Test Maintenance Amount for such
Remittance Date to the Class A-6
Certificateholders, but in no event more than the
Class A-6 Principal Balance;
5. after payment of the amounts specified in clauses
(1)-(4) above, to the Class B-1 Certificateholders as follows,
in the following order of priority:
(i) the amount in clause (i) of the definition of
Class B-1 Interest Distribution Amount;
(ii) any Unpaid Class B-1 Interest Shortfall;
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(iii) the sum of (x) the excess of (a) the Class B
Percentage of the Formula Principal Distribution
Amount over (b) the Class B OC Stepdown Funded
Portion for such Remittance Date and (y) any
portion of the amount described in clause (x)
preceding which was due with respect to the Class
B-2 Certificates on prior Remittance Dates but
which remains unpaid on such Remittance Date to
the Class B-1 Certificateholders, but in no event
more than the Class B-1 Principal Balance;
6. after payment of the amounts specified in clauses
(1) - (5) above, to the Class B-2 Certificateholders as follows:
(i) the amount in clause (i) of the definition of
Class B-2 Formula Distribution Amount;
(ii) any Unpaid Class B-2 Interest Shortfall;
(iii) the sum of (x) the excess of (a) the Class B
Percentage of the Formula Principal Distribution
Amount over (b) the Class B OC Stepdown Funded
Portion for such Remittance Date and (y) any
portion of the amount described in clause (x)
preceding which was due with respect to the Class
B-2 Certificates on prior Remittance Dates but
which remains unpaid on such Remittance Date to
the Class B-2 Certificateholders but in no event
more than the Class B-2 Principal Balance;
7. after payment of the amounts specified in clauses
(2)-(6) above, if the Company or a wholly-owned subsidiary of the
Company is the Servicer, to pay the Monthly Servicing Fee and any other
compensation owed to the Servicer pursuant to Section 7.02;
8. after payment of the amounts specified in clauses
(1) - (7) above, to the Servicer, the lesser of (x) the net investment
earnings earned on amounts in the Certificate Account during the prior
Collection Period and (y) the amount then on deposit in the Certificate
Account;
9. after payment of the amounts specified in clauses
(1)-(8) above, to reimburse the Residual Certificateholders for
expenses incurred by and reimbursable to them pursuant to Section
10.06;
10. after payment of the amounts specified in clauses
(1)-(9) above, to the Class C Certificateholders, the Class C
Distribution Amount;
11. after payment of the amounts specified in clauses
(1)-(10) above, and if the Class B-2 Principal Balance has
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been reduced to zero, to the Class C Certificateholders, the
Overcollateralization Reduction Amount for such Remittance Date;
12. any remaining funds shall be paid to the Residual
Certificateholders.
(b) If the applicable Monthly Report indicates that a Class
A-6 Interest Deficiency Amount, a Class B-1 Interest Deficiency Amount and/or a
Class B-2 Interest Deficiency Amount will occur on such Remittance Date, the
Trustee shall, after distribution of the Amount Available pursuant to Section
8.03(a), apply from the Amount Held For Future Distribution on deposit in the
Certificate Account on such date, an amount equal to the Class A-6 Interest
Deficiency Amount, the Class B-1 Interest Deficiency Amount and the Class B-2
Interest Deficiency Amount (or the amount of such funds representing the Amount
Held For Future Distribution in the Certificate Account, if less) and distribute
such amount, first to the Class A-6 Certificateholders up to the amount of the
Class A-6 Interest Deficiency Amount (pro rata, if such funds are less than the
Class A-6 Interest Deficiency Amount), if any, then to the Class B-1
Certificateholders up to the amount of the Class B-1 Interest Deficiency Amount
(pro rata, if such remaining funds are less than the Class B-1 Interest
Deficiency Amount), and then to the Class B-2 Certificateholders up to the
amount of the Class B-2 Interest Deficiency Amount (pro rata, if such remaining
funds are less than the Class B-2 Interest Deficiency Amount).
(c) If, on any Remittance Date prior to the Class A-5
Principal Balance being reduced to zero, the Pool Scheduled Principal Balance at
the close of business on the last day of the related Collection Period would be
less than the sum of the Class A-1 Principal Balance, the Class A-2 Principal
Balance, the Class A-3 Principal Balance, the Class A-4 Principal Balance and
the Class A-5 Principal Balance on such Remittance Date after giving effect to
distributions of principal to be made on such date, then the Amount Available
remaining after distribution of interest on the Senior Certificates will be
distributed to the Classes of Senior Certificates on a pro rata basis as a
distribution of the Senior Percentage of the Formula Principal Distribution
Amount, and the amount of any shortfall being allocated pro rata among the
outstanding Classes of Senior Certificates, based upon their respective
outstanding Certificate Principal Balances.
(d) If the Trustee shall not have received the applicable
Monthly Report by any Remittance Date, the Trustee shall distribute all funds
then in the Certificate Account to Certificateholders in accordance with Section
8.03(a), to the extent of such funds, on such Remittance Date.
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ARTICLE IX
THE CERTIFICATES
SECTION 9.01. The Certificates. The Senior, the Class A-6, the
Class B, the Class C and Residual Certificates shall be substantially in the
forms set forth in Exhibits A-1, A-2, A-3, A-4, A-5, A-6, B-1, B-2, C, D-1 and
D-2, respectively, and shall, on original issue, be authenticated by the Trustee
to or upon the order of the Sponsor.
The Senior, the Class A-6 and the Class B Certificates shall
be evidenced by (i) one or more Class A-1 Certificates representing $33,544,000
initial aggregate principal balance, (ii) one or more Class A-2 Certificates;
representing $26,360,000 initial aggregate principal balance, (iii) one or more
Class A-3 Certificates representing $23,862,000 initial aggregate principal
balance, (iv) one or more Class A-4 Certificates representing $12,115,000
initial aggregate principal balance, (v) one or more Class A-5 Certificates,
representing $23,781,000 initial aggregate principal balance, (vi) one or more
Class A-6 Certificates, representing $12,764,000 initial aggregate principal
balance, (vii) one or more Class B-1 Certificates, representing $17,551,000
initial aggregate principal balance, and (viii) one or more Class B-2
Certificates $9,573,000 initial aggregate principal balance, beneficial
ownership of such Classes of Certificates (other than the Class B-2
Certificates) to be held through Book-Entry Certificates in minimum dollar
denominations of $1,000 and integral dollar multiples of $1,000 in excess
thereof. The Class B-2 Certificates shall be issuable in physical form in
minimum denominations of $1,000 and integral multiples of $1,000, except that
one Class B-2 Certificate may be issued in a denomination representing the
remainder of the Original Class B-2 Principal Balance. The Class B-2
Certificates shall initially be registered in the name of the Seller. The Class
C, Class RL and Class RU Certificates shall be issuable in Percentage Interests
and shall be evidenced by a single Certificate of each such Class issued on the
Closing Date directed by the Sponsor.
The Certificates shall be executed by manual signature on
behalf of the Trustee by a duly authorized Responsible Officer or authorized
signatory. Certificates bearing the signatures of individuals who were at any
time the proper officers of the Trustee shall bind the Trustee, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the execution and delivery of such Certificate or did not hold such offices at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless such Certificate has
been executed by manual signature in accordance with this Section, and such
signature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their
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execution, except for those Certificates executed on the Closing Date, which
shall be dated the Closing Date.
SECTION 9.02. Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall keep at the office or agency to be
maintained in accordance with Section 12.02 a "Certificate Register" in which
the Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee initially appoints
itself to be the "Certificate Registrar" and transfer agent for the purpose of
registering Certificates and transfers and exchanges of Certificates as provided
herein. The Trustee will give prompt written notice to Certificateholders and
the Servicer of any change in the Certificate Registrar.
(b) (1) Subject to clauses (2) and (3) below, no transfer of a
Class B-2, Class C Certificate or a Residual Certificate shall be made unless
such transfer is exempt from the registration requirements of the Securities Act
of 1933 (the "Act"), as amended, and any applicable state securities laws or is
made in accordance with the Act and laws. In the event that any such transfer is
to be made, (A) the Company may require a written Opinion of Counsel acceptable
to and in form and substance satisfactory to the Company that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the Act and laws or is being made pursuant to the Act and
laws, which Opinion of Counsel shall not be an expense of the Trustee or the
Company, and (B) the Trustee shall require the transferee to execute an
investment letter substantially in the form of Exhibit K attached hereto, which
investment letter shall not be an expense of the Trustee or the Company. The
Certificate- holder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Company and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws. The Company shall provide
to any Holder of a Class B- 2, Class C or Residual Certificateholder and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Contracts and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for the transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. The
Trustee and the Servicer (if different from the Company) shall cooperate with
the Company in providing the Rule 144A information referenced in the preceding
sentence, including providing to the Company such information regarding the
Certificates, the Contracts and other matters regarding the Trust as the Company
shall reasonably request to meet its obligation under the preceding sentence.
(2) No transfer of a Class A-6, Class B-1, Class B-
2, Class C or a Residual Certificate or any interest therein shall be made to
any employee benefit plan, trust or account that is subject to ERISA, or that is
described in Section 4975(e)(1) of the
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Code (each, a "Plan"), unless the prospective transferee of a Certificate or
interest therein provides the Servicer, the Sponsor and the Trustee with a
benefit plan affidavit in the form attached to the representation letter.
(3) Notwithstanding anything to the contrary
contained herein, (A) no Residual Certificate, nor any interest therein, shall
be transferred, sold or otherwise disposed of to a "disqualified organization,"
within the meaning of Section 860E(e)(5) of the Code, including any agent for,
or any pass-through entity an interest is owned by, a disqualified organization
(a "Disqualified Organization"), including, but not limited to, (i) the United
States, a state or political subdivision thereof, a foreign government, an
international organization or an agency or instrumentality of any of the
foregoing, (ii) an organization (other than a cooperative described in Section
521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code
and not subject to the tax imposed on unrelated business income by Section 511
of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the
Code, and (B) prior to any registration of any transfer, sale or other
disposition of such Residual Certificate, the proposed transferee shall deliver
to the Trustee, under penalties of perjury, an affidavit that such transferee is
not a Disqualified Organization, with respect to which the Trustee shall have no
actual knowledge that such affidavit is false, and the transferor and the
proposed transferee shall each deliver for the Trustee an affidavit with respect
to any other information reasonably required by the Trustee pursuant to the
REMIC Provisions, including, without limitation, information regarding the
transfer of noneconomic residual interests and transfers of any residual
interest to or by a foreign person; provided, however, that, upon the delivery
to the Trustee of an Opinion of Counsel, in form and substance satisfactory to
the Trustee and rendered by Independent counsel, to the effect that the
beneficial ownership of such Residual Certificate by any Disqualified
Organization will not result in the imposition of federal income tax upon the
Trust or any Certificateholder or any other person or otherwise adversely affect
the status of any REMIC held by the Trust as a REMIC, the foregoing prohibition
on transfers, sales and other dispositions, as well as the foregoing requirement
to deliver a certificate prior to any registration thereof, shall, with respect
to such Disqualified Organization, terminate. Notwithstanding any transfer, sale
or other disposition of a Residual Certificate, or any interest therein, to a
Disqualified Organization or the registration thereof in the Certificate
Register, such transfer, sale or other disposition and any registration thereof,
unless accompanied by the Opinion of Counsel described in the preceding
sentence, shall be deemed to be void and of no legal force or effect whatsoever
and such Disqualified Organization shall be deemed to not be a Residual
Certificateholder for any purpose hereunder, including, but not limited to, the
receipt of distributions on such Residual Certificate, and shall be deemed to
have no interest whatsoever in such Residual Certificate. Each Residual
Certificateholder, by its
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acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this Section 9.02(b)(3).
(4) Any transfer, sale or other disposition not in
compliance with the provisions of this Section 9.02(b) shall be deemed to be
void and of no legal force or effect whatsoever and such transferee shall be
deemed to not be the Certificateholder for any purpose hereunder, including, but
not limited to, the receipt of distributions on the Certificate, and shall be
deemed to have no interest whatsoever in the Certificate.
(c) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class, in authorized denominations
of a like aggregate original denomination, upon surrender of such Certificates
to be exchanged at such office. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall be duly endorsed by, or
shall be accompanied by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by the holder thereof or
his or her attorney duly authorized in writing.
(d) Except as provided in paragraph (e) below the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of the Senior, Class A-6 and
Class B-1 Certificates may not be transferred by the Trustee except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of such
Senior, Class A-6 and Class B-1 Certificates; (iii) ownership and transfers of
registration of the Senior, Class A-6 and Class B-1 Certificates on the books of
the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and indirect participating
firms as representatives of the Certificate Owners of the Senior, Class A-6 and
Class B-1 Certificates for purposes of exercising the rights of Holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Trustee may rely and shall
be fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm
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representing such Certificate Owner. Each Depository Participant shall only
transfer Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(e) If (x) (i) the Company or the Depository advises the
Trustee in writing that the Depository is no longer willing or able properly to
discharge its responsibilities as Depository and (ii) the Trustee or Company is
unable to locate a qualified successor or (y) the Company at its sole option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully registered Senior Certificates, Class A-6 Certificates or
Class B-1 Certificates (the "Definitive Certificates") to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Senior Certificates,
Class A-6 Certificates or Class B-1 Certificates by the Depository, accompanied
by registration instructions from the Depository for registration, the Trustee
shall issue the Definitive Certificates. Neither the Company nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(f) On or prior to the Closing Date, there shall be delivered
to the Depository one Class A-1 Certificate, one Class A-2 Certificate, one
Class A-3 Certificate, one Class A-4 Certificate, one Class A-5 Certificate, one
Class A-6 Certificate, and one Class B-1 Certificate, each in registered form
registered in the name of the Depository's nominee, Cede & Co., the total face
amount of which represents 100% of the Original Class A-1 Principal Balance, the
Original Class A-2 Principal Balance, the Original Class A-3 Principal Balance,
the Original Class A-4 Principal Balance, the Original Class A-5 Principal
Balance, the Original Class A-6 Principal Balance, and the Original Class B-1
Principal Balance, respectively. Each such Senior, Class A-6 or Class B-1
Certificate registered in the name of the Depositary's nominee shall bear the
following legend:
"Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
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inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
SECTION 9.03. No Charge; Disposition of Void Certificates. No
service charge shall be made to a Certificateholder for any transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates. All Certificates
surrendered for transfer and exchange shall be disposed of in a manner approved
by the Trustee.
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar and the Trustee such security or indemnity as may be
required by each to save it harmless, then in the absence of notice to the
Certificate Registrar or the Trustee that such Certificate has been acquired by
a bona fide purchaser, the Trustee shall execute and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and original denomination. Upon the issuance of any
new Certificate under this Section 9.04, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. Any
duplicate Certificate issued pursuant to this Section 9.04 shall constitute
complete and indefeasible evidence of ownership of the Percentage Interest, as
if originally issued, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time.
SECTION 9.05. Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the Servicer, the
Company, the Trustee, the Paying Agent and the Certificate Registrar may treat
such person in whose name any Certificate in registered as the owner of such
Certificate for the purpose of receiving remittances pursuant to Section 8.01
and for all other purposes whatsoever, and none of the Servicer, the Company,
the Trustee, the Certificate Registrar, the Paying Agent or any agent of the
Servicer, the Company, the Trustee, the Paying Agent or the Certificate
Registrar shall be affected by notice to the contrary.
SECTION 9.06. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar will furnish to the Trustee and the
Servicer, within five days after receipt by the Certificate Registrar of a
request therefor from the Trustee in writing a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Certificateholders as
of the most recent Record Date. If Holders of Certificates evidencing, as to any
Class, Percentage Interests representing 25% or more (hereinafter referred to an
"Applicants") apply in writing to the
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Trustee, and such application states that the Applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and is accompanied by a copy of the communication
which such Applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, afford such Applicants
access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If such list is as of a date more than
90 days prior to the date of receipt of such Applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such Applicants access to such list promptly upon
receipt. Every Certificateholder, by receiving and holding a Certificate, agrees
with the Certificate Registrar and the Trustee that none of the Company, the
Certificate Registrar or the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 9.07. Authenticating Agents. The Trustee may
appoint one or more Authenticating Agents with power to act on its behalf and
subject to its direction in the execution and delivery of the Certificates. For
all purposes of this Agreement, the execution and delivery of Certificates by
the Authenticating Agent pursuant to this Section shall be deemed to be the
execution and delivery of Certificates "by the Trustee."
ARTICLE X
INDEMNITIES
SECTION 10.01. Company's Indemnities. The Company will
defend and indemnify the Trust, the Trustee (including the Paying Agent and any
other agents of the Trustee) and the Certificate- holders against any and all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel and expenses of litigation of any third-party
claims (i) arising out of or resulting from the origination of any Contract
(including, but not limited to, truth in lending requirements) or the servicing
of such Contract prior to its transfer to the Trust (but only to the extent such
cost, expense, loss, damage, claim or liability is not provided for by the
Company's repurchase of such Contract pursuant to Section 3.05) or (ii) arising
out of or resulting from the use or ownership of any Manufactured Homes by the
Company or the Servicer or any Affiliate of either. Notwithstanding any other
provision of this Agreement, the obligation of the Company under this Section
shall not terminate upon a Service Transfer pursuant to Article VII, except that
the obligation of the Company under this Section shall not relate to the actions
of any subsequent Servicer after a Service Transfer.
SECTION 10.02. Liabilities to Obligors. No obligation
or liability to any Obligor under any of the Contracts is intended
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to be assumed by the Trust, the Certificateholders under or as a result of this
Agreement and the transactions contemplated hereby and, to the maximum extent
permitted and valid under mandatory provisions of law, the Trustee, the Trust,
the Certificateholders expressly disclaim such assumption.
SECTION 10.03. Tax Indemnification. The Company agrees to pay,
and to indemnify, defend and hold harmless the Trust, the Trustee (including the
Paying Agent and any other agents of the Trustee), and the Certificateholders
from, any taxes which may at any time be asserted with respect to, and as of the
date of, the transfer of the Contracts to the Trust, including, without
limitation, any sales, gross receipts, general corporation, personal property,
privilege or license taxes (but not including any federal, state or other taxes
arising out of the creation of the Trust and the issuance of the Certificates),
any tax imposed on the Trust as a result of the Company's repurchase of any
Contract pursuant to Section 3.05(c), and costs, expenses and reasonable counsel
fees in defending against the same, whether arising by reason of the acts to be
performed by the Company, the Servicer or the Trustee under this Agreement or
imposed against the Trust, a Certificateholder or otherwise.
SECTION 10.04. Servicer's Indemnities. The Servicer
shall defend and indemnify the Trust, the Trustee (the Paying Agent and any
other agents of the Trustee), the Certificateholders against any and all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, in respect of any action taken
or omitted to be taken by the Servicer with respect to any Contract. This
indemnity shall survive any Service Transfer (but the original Servicer's
obligations under this Section 10.04 shall not relate to any actions of any
subsequent Servicer after a Service Transfer) and any payment of the amount
owing under, or any repurchase by the Company of, any such Contract.
SECTION 10.05. Operation of Indemnities. Indemnification under
this Article shall include, without limitation, reasonable fees and expenses of
counsel in connection with the administration of the trusts hereunder and
expenses of litigation (including litigation of claims by third parties). If the
Company or the Servicer has made any indemnity payments to the Trustee pursuant
to this Article and the Trustee thereafter collects any of such amounts from
others, the Trust will repay such amounts collected to the Company or the
Servicer, as the case may be, without interest.
SECTION 10.06. REMIC Tax Matters. If Residual
Certificateholders, pursuant to Section 6.06, pay any taxes or charges imposed
upon any REMIC held by the Trust as a REMIC or otherwise, such taxes or charges,
except to the extent set forth in the following proviso, shall be expenses and
costs of the Trust and the Residual Certificateholders shall be entitled to be
reimbursed therefor out of the Certificate Account as provided in Section
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8.03; provided, however, that any such taxes or charges shall not be expenses or
costs of the Trust, nor will the Residual Certificateholders be entitled to
reimbursement therefor out of the Certificate Account, if and to the extent that
such taxes or charges resulted from a failure by the Company, the Trustee or any
Servicer to comply with the provisions of Section 2.04.
ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee. The Trustee, prior to the
occurrence of an Event of Termination and after the curing of all Events of
Termination which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. If an Event of
Termination has occurred (which has not been cured), the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
Subject to Section 11.03, no provision of this Agreement shall
be construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own misconduct; provided, however, that:
(a) Prior to the occurrence of an Event of Termination, and
after the curing of all such Events of Termination which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Agreement;
(b) The Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Certificate- holders with aggregate
Percentage Interests representing 25% or more of the Trust relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Agreement; and
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(d) The Trustee shall not be charged with knowledge of any
event referred to in Section 7.01 unless a Responsible Officer of the Trustee at
the Corporate Trust Office obtains actual knowledge of such event or the Trustee
receives written notice of such event from the Servicer or the Holders of
Certificates evidencing, as to any Class, Percentage Interests representing 25%
or more.
None of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Company or the Servicer under this
Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of this Agreement. The Trustee shall
not be required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
SECTION 11.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of a Servicing Officer, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) The Trustee may consult with counsel of its selection and
any opinion or advice of such counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such opinion or advice of
counsel;
(c) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation hereunder or in relation hereto, at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; provided, however, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Termination (which has not been cured), to exercise
such of the rights and powers vested in it by this Agreement, and to use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs;
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(d) Prior to the occurrence of an Event of Termination and
after the curing of all Events of Termination which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates evidencing, as
to any Class, Percentage Interests representing 25% or more; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such cost, expense or liability
as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Servicer or, if paid by the Trustee, shall be
reimbursed by the Servicer upon demand; and
(e) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian and shall not be liable for any acts or
omissions of such agents, attorneys or custodians if appointed by it with due
care hereunder.
SECTION 11.03. Trustee Not Liable for Certificates or
Contracts. The Trustee assumes no responsibility for the correctness of the
recitals contained herein, or in the Certificates (other than the Trustee's
execution thereof). The Trustee makes no representations as to the validity or
sufficiency of this Agreement, of the Certificates (either than its execution
thereof) or of any Contract, Contract File or related document. The Trustee
shall not be accountable for the use or application by the Servicer or the
Company of funds paid to the Seller in consideration of conveyance of the
Contracts to the Trust by the Seller or deposited into or withdrawn from the
Collection Account by the Servicer.
SECTION 11.04. Rights of Certificateholders to Direct Trustee
and to Waive Event of Termination. The Majority Holders shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Trustee in good faith shall, by a Responsible Officer or
officers of the Trustee, determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly prejudicial to the
rights of Certificateholders not parties to such direction; and provided,
further, that nothing in this Agreement shall impair the right of the Trustee to
take any action deemed proper by, the Trustee and which is not inconsistent with
such direction by the
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Certificateholders. In addition, the Majority Holders may on behalf of
Certificateholders waive any past Event of Termination hereunder and its
consequences, except a default in respect of a covenant or provision hereof
which under Section 12.07 cannot be modified or amended without the consent of
all Certificateholders, and upon any such waiver, such Event of Termination
shall cease to exist and shall be deemed to have been cured for every purpose of
this Agreement; but no such waiver shall extend to any subsequent or other Event
of Termination or impair any right consequent thereon.
SECTION 11.05. The Servicer to Pay Trustee's Fees and
Expenses. The Servicer agrees:
(a) to pay to the Trustee reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee, to the extent requested by the Trustee, for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder, including the costs and
expenses of defending itself against any claim or liability (including any claim
by a third party, or otherwise) in connection with the exercise or performance
of any of its powers or duties hereunder.
All such payments by the Servicer shall be made from its own
funds. The covenants in this Section 11.05 shall be for the benefit of the
Trustee in its capacities as Trustee, Paying Agent and Certificate Registrar
hereunder, and shall survive the termination of this Agreement.
SECTION 11.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a financial institution organized
and doing business under the laws of the United States of America or any State,
authorized under such laws to exercise corporate trust powers and a Title I
approved lender pursuant to FHA Regulations, and shall have a combined capital
and surplus of at least $50,000,000 or shall be a member of a bank holding
system the aggregate combined capital and surplus of which is $50,000,000,
provided that the Trustee's separate capital and surplus shall at all times be
at least the amount required by Section 310(a)(2) of the Trust Indenture Act of
1939, as amended. If such Person
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publishes reports of condition at least annually, pursuant to law or to the
requirements of a supervising or examining authority, then for the purposes of
this Section 11.06, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In addition, the Trustee shall at all times
have a long-term deposit rating from Moody's of at least Baa3 or as shall be
otherwise acceptable to Moody's and a rating from Fitch (if rated by Fitch) of
at least BBB- or as shall be otherwise acceptable to Fitch. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.07.
SECTION 11.07. Resignation or Removal of Trustee. The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Servicer and the Company. A copy of any
such notice shall be sent to Moody's and Fitch. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
each of the Servicer and the Company and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and shall have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 and shall fail to resign after
written request therefor by the Company or any Certificateholder, or if at any
time the Trustee shall be legally unable to act, or shall be adjudged a bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Company may remove the Trustee. If the Company shall have
removed the Trustee under the authority of the immediately preceding sentence,
the Company shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee. If the Company shall not have
appointed a successor Trustee, and such successor Trustee have accepted
appointment, within 30 days after the Company's removal of the Trustee, then the
Trustee being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 11.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 11.08.
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SECTION 11.08. Successor Trustee. Any successor Trustee
appointed as provided in Section 11.07 shall execute, acknowledge and deliver to
the Servicer, the Company and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee. The predecessor Trustee shall deliver
or cause to be delivered to the successor Trustee the Contracts, Contract Files
and any related documents and statements held by it hereunder; and the Servicer,
the Company and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in
this Section 11.08 unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 11.06.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 11.08, the Servicer shall cause notice of the
succession of such Trustee hereunder to be mailed to each Certificateholder at
their addresses as shown in the Certificate Register. If the Servicer fails to
mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Servicer.
SECTION 11.09. Merger or Consolidation of Trustee. Any
Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such Person shall be eligible under
the provisions of Section 11.06, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall promptly notify Moody's and Fitch in
the event it is a party to any merger, conversion or consolidation.
SECTION 11.10. Tax Returns. Initially, the Trustee shall
prepare and file all tax returns applicable to the Trust and each REMIC held by
the Trust and the Servicer shall furnish the Trustee with all such information
as the Trustee may reasonably require in connection with preparing all tax
returns of the Trust and the Trustee shall execute such returns.
SECTION 11.11. Obligor Claims. In connection with any
offset defenses, or affirmative claims for recovery, asserted in legal actions
brought by obligors under one or more Contracts based
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upon provisions therein complying with, or upon other rights or remedies arising
from, any legal requirements applicable to the Contracts, including, without
limitation, the Federal Trade Commission's Trade Regulation Rule Concerning
Preservation of Consumers' Claims and Defenses (16 C.F.R. (S) 433) as amended
from time to time:
(a) The Trustee is not, and shall not be deemed to be, either
in any individual capacity, as trustee hereunder or otherwise, a creditor, or a
joint venturer with or an Affiliate of, or acting in concert or cooperation
with, any seller of home improvements, in the arrangement, origination or making
of Contracts. The Trustee is the holder of the Contracts only as trustee on
behalf of the Certificateholders, and not as a principal or in any individual or
personal capacity;
(b) The Trustee shall not be personally liable for or
obligated to pay Obligors any affirmative claims asserted thereby, or
responsible to Certificateholders for any offset defense amounts applied against
Contract payments, pursuant to such legal actions;
(c) The Trustee will pay, solely from available Trust monies,
affirmative claims for recovery by Obligors only pursuant to final judicial
orders or judgments, or judicially approved settlement agreements, resulting
from such legal actions;
(d) The Trustee will comply with judicial orders and judgments
which require its actions or cooperation in connection with Obligors' legal
actions to recover affirmative claims against Certificateholders.
(e) The Trustee will cooperate with and assist
Certificateholders in their defense of legal actions by Obligors to recover
affirmative claims if such cooperation and assistance is not contrary to the
interests of the Trustee as a party to such legal actions and if the Trustee is
satisfactorily indemnified for all liability, costs and expenses arising
therefrom; and
(f) The Company hereby agrees to indemnify, hold harmless and
defend the Trustee, Certificateholders from and against any and all liability,
loss, costs and expenses (including the reasonable fees and disbursements of
counsel) of the Trustee, Certificateholders resulting from any affirmative
claims for recovery asserted or collected by Obligors under the Contracts.
Notwithstanding any other provision of this Agreement, the obligation of the
Company under this Section 11.11(f) shall not terminate upon a Service Transfer
pursuant to Article VII.
SECTION 11.12. Appointment of Co-Trustee or Separate Trustee.
The Company shall have the power from time to time to appoint one or more
persons or corporations to act as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of conforming to any legal
requirement, restriction or condition (i) with respect to the holding of the
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Contracts, the Contract Files or (ii) with respect to the enforcement of a
Contract in any state in which a Manufactured Home is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all Certificateholders and shall, subject to the provisions of the following
paragraph, have such powers, rights and remedies as shall be specified in the
instrument of appointment; provided, however, that no such appointment shall, or
shall be deemed to, constitute the appointee an agent of the Trustee.
Every separate trustee, co-trustee and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of monies
shall be exercised solely by the Trustee;
(B) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee, to the extent also imposed upon such
separate trustees, co-trustees or custodians, shall be conferred or
imposed upon and exercised or performed by the Trustee and such
separate trustee, co-trustee, or custodian jointly, except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Trustee shall be ineligible or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including holding of the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(C) no separate trustee, co-trustee or custodian hereunder
shall be personally liable by reason of any act or omission of any
other separate trustee, co-trustee or custodian hereunder; and
(D) the Company may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by
it.
If any separate trustee, co-trustee or custodian shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee or custodian. The reasonable fees and expenses of any such
separate trustee, co-trustee or custodian shall be treated as additional fees
and expenses of the Trustee subject to Section 11.05 and payable by the Servicer
if and only to the extent the Servicer shall have consented in writing to his or
its appointment, which consent shall not be unnecessarily withheld.
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SECTION 11.13. Agents of Trustee. To the extent not prohibited
by law and not inconsistent with the terms of this Agreement (including, without
limitation, Section 11.12), the Trustee may, with the prior consent of the
Company, appoint one or more agents to carry out ministerial matters on behalf
of the Trustee under this Agreement.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Servicer Not to Assign Duties or Resign;
Delegation of Servicing Duties. The Servicer may not sell or assign its rights
and duties as Servicer hereunder, except as expressly provided for herein,
provided that the Servicer may pledge or assign the right to receive all or any
portion of the Monthly Servicing Fee payable to it. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon
determination that the performance of its duties hereunder is no longer
permissible under applicable law or is in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel for the Servicer to such effect addressed and delivered to
the Trustee. No such resignation shall become effective until the Trustee or a
successor Servicer shall have assumed the responsibilities and obligations of
the Servicer in accordance with Sections 7.02 and 7.03.
Notwithstanding the foregoing:
(a) Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any Person succeeding
to the business of the Servicer, shall be the successor of the Servicer
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Servicer shall satisfy the criteria set forth in the definition of an
Eligible Servicer. The Servicer shall promptly notify Moody's and Fitch of any
such merger to which it is a party.
(b) The Company, if it is the Servicer, may delegate some or
all of its servicing duties to a wholly-owned subsidiary of the Company, for so
long as said subsidiary remains, directly or indirectly, a wholly-owned
subsidiary of the Company. Notwithstanding any such delegation the Company shall
retain all of the rights and obligations of the Servicer hereunder.
SECTION 12.02. Maintenance of Office or Agency. The
Trustee will maintain in New York, an office or agency where Certificates or
Class C Certificates may be surrendered for
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registration of transfer or exchange and where notices and demands to or upon
the Trustee in respect of the Certificates and this Agreement may be served. On
the date hereof the Trustee's office for such purposes is located at 101 Barclay
Street, New York, New York, Attention: Corporate Trust Window. The Trustee will
give prompt written notice to Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
SECTION 12.03. Termination. (a) This Agreement shall terminate
(after distribution of all amounts due to Certificate- holders pursuant to
Sections 8.01 and 8.03) on the earlier of (a) the Remittance Date on which the
Pool Scheduled Principal Balance is reduced to zero and all amounts payable to
Certificateholders on such Remittance Date have been distributed to
Certificateholders or (b) the Remittance Date on which the Company repurchases
the Contracts pursuant to Section 12.03(b); provided, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof; and provided, further, that the Servicer's and the Company's
representations and warranties and indemnities by the Company and the Servicer
shall survive termination.
(b) Subject to the conditions in subsection (c) below, the Servicer may
repurchase all of the Contracts and all property acquired in respect of any
Contract remaining in the Trust at a price equal to the greater of:
(i) the sum of (x) 100% of the Principal Balance of each
Contract (other than any Contract as to which the related Manufactured
Home has been acquired and not yet disposed of and whose fair market
value is included pursuant to clause (y) below) as of the final
Remittance Date, (y) the fair market value of such acquired property
(as determined by the Servicer and (z) any Unpaid Senior Interest
Shortfall, any Unpaid Class A-6 Interest Shortfall, any Unpaid Class
B-1 Interest Shortfall and any Unpaid Class B-2 Interest Shortfall as
well as one month's interest at the applicable Contract Rate on the
Scheduled Principal Balance of each Contract (including any Contract as
to which the related Manufactured Home has been repossessed and not yet
disposed of), together with the Monthly Servicing Fee; provided, that
such amount shall in no event be less than the amount necessary to pay
in full the Certificate Principal Balance of all Classes of
Certificates then outstanding, together with the Overcollateralization
Amount and all accrued and unpaid interest on all Classes of
Certificates then outstanding (the amount described in this clause (i),
the "Termination Price"); or
(ii) the aggregate fair market value (as determined by
the Servicer) of all of the assets of the Trust.
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(c) The purchase by the Company of all of the Contracts
pursuant to Section 12.03(b) above shall be at the option of the Company, but
shall be conditioned upon (1) the Pool Scheduled Principal Balance, at the time
of any such purchase, aggregating less than $16,198,071, (2) such purchase
constituting a plan of complete liquidation in accordance with Section 860F of
the Code, (3) the Company having provided the Trustee and the Depository (if
any) with at least 30 days' written notice and (4) the Company having delivered
to the Trustee an unqualified Opinion of Counsel stating that payment of the
purchase price to the Certificate- holders will not constitute a voidable
preference under the United States Bankruptcy Code. If such option is exercised,
the Company shall provide to the Trustee the certification required by Section
12.03, which certificate shall constitute a plan of complete liquidation within
the meaning of Section 860F of the Code, and the Trustee shall promptly sign
such certification and release to the Company the Contracts then held by the
Trustee.
In connection with any such purchase, the Company shall
provide to the Trustee an Opinion of Counsel experienced in federal income tax
matters to the effect that such purchase constitutes a Qualified Liquidation
with respect to each REMIC.
(d) If the Company does not, by the ninetieth day following
the Auction Call Date, exercise its rights as described in paragraphs (b) and
(c) above, then the Trustee will notify the Representative (or another
investment banking or whole-loan trading firm selected by the Company, the
Representative or such other investment bank or trading firm, the "Advisor"),
who will solicit on behalf of the Trustee competitive bids for the purchase of
the assets of the Trust for fair market value on a servicing retained basis.
Such solicitation shall be conducted substantially in the manner described in
Exhibit M hereto. In the event that satisfactory bids are received as described
below, the proceeds of the sale of such assets shall be deposited into the
Certificate Account. The Trustee will ask the Advisor to solicit, on behalf of
the Trustee, good-faith bids from no fewer than two prospective purchasers that
are considered at the time to be competitive participants in the manufactured
housing finance industry. The Advisor will consult with any securities brokerage
houses identified by the Company as then making a market in the Certificates to
obtain a determination as to whether the fair market value on a servicing
retained basis of such assets has been offered.
Any purchaser of such assets of the Trust must agree to the
continuation of the Servicer or any successor Servicer as servicer of the assets
on terms substantially similar to those in this Agreement.
If the highest good-faith bid received by the Advisor from a
qualified bidder is, in the judgment of the Advisor, not less than the fair
market value of such assets of the Trust and if such bid would equal the amount
set forth in the following
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sentence, the Trustee, following consultation with and written direction from
the Advisor, will sell and assign such assets of the Trust without
representation, warranty or recourse to such highest bidder and will redeem the
Certificates. For the Trustee to consummate the sale, the bid must be at least
equal to the termination price set forth in Section 12.03(b) hereof. In
addition, the bid must be in an amount sufficient to pay the fees and expenses
of the Trustee owing hereunder. If such conditions are not met, the Trustee
will, following consultation with the Advisor, decline to consummate such sale.
In addition, the Trustee will decline to consummate such sale unless it receives
from the Advisor an opinion of counsel addressed to it that such sale will not
give rise either to any "prohibited transaction" tax under section 860F(a)(1) of
the Code or to any tax on contributions to the REMIC after the "startup day"
under section 860G(d)(1) of the Code. In the event such sale is not consummated
in accordance with the foregoing, the Trustee will not be under any obligation
to solicit any further bids or otherwise to negotiate any further sale of the
assets of the Trust. In such event, however, if directed by the Company, the
Trustee may solicit bids from time to time in the future for the purchase of the
assets of the Trust upon the same terms described above. The Trustee may consult
with the Advisor and the advice of the Advisor shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder.
(e) Notice of any termination, specifying the Final Remittance
Date (which shall be a date that would otherwise be a Remittance Date) upon
which all Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee (upon direction by the Company ten days prior to the date such
notice is to be mailed) by letter to Moody's, Fitch and the Certificateholders
mailed no later than the fifth Business Day of the month of the Final Remittance
Date specifying (1) the Final Remittance Date upon which final payment on the
Certificates will be made upon presentation and surrender of Certificates at the
office or agency of the Trustee therein designated; (2) the amount of any such
final payment; and (3) that the Record Date otherwise applicable to such
Remittance Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office or agency of the Trustee therein
specified.
Any notice of purchase of Contracts by the Company pursuant to
Section 12.03(b) shall constitute the adoption by the Trustee on behalf of the
Certificateholders of a plan of complete liquidation within the meaning of
Section 860F of the Code on the date such notice is given when signed by the
Trustee. Each such notice shall, to the extent required by the REMIC Provisions
or other applicable law, be signed on behalf of the Trust by the Trustee. The
Trustee shall give such notice to the Certificate Registrar at the time such
notice is given to the Certificate- holders. In the event such notice is given
in connection with the Company's election to purchase the Contracts, the Company
shall
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deposit in the Certificate Account on the Final Remittance Date in immediately
available funds an amount equal to the above-described purchase price and upon
such deposit Certificateholders will be entitled to the amount of such purchase
price but not amounts in excess thereof, all as provided herein. Upon
certification to the Trustee by a Servicing Officer, following such final
deposit the Trustee shall promptly release to the Company the remaining
Contracts, and the Trustee shall execute all assignments, endorsements and other
instruments necessary to effectuate such transfer.
(f) Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed from the Certificate Account, in the
following order of priority, to Certificateholders on the final Remittance Date
in proportion to their respective Percentage Interests an amount equal to (i) as
to Senior Certificates, the Class A-1 Principal Balance, the Class A-2 Principal
Balance, the Class A-3 Principal Balance, the Class A-4 Principal Balance, the
Class A-5 Principal Balance, together with any Unpaid Senior Interest Shortfall
and one month's interest at the Class A-1 Remittance Rate, the Class A-2
Remittance Rate, the Class A-3 Remittance Rate, the Class A-4 Remittance Rate,
the Class A-5 Remittance Rate on the Class A-1 Principal Balance, the Class A-2
Principal Balance, the Class A-3 Principal Balance, the Class A-4 Principal
Balance, the Class A-5 Principal Balance, respectively, (ii) as to Class A-6
Certificates, the Class A-6 Principal Balance together with any Unpaid Class A-6
Interest Shortfall and one month's interest at the Class A-6 Remittance Rate on
the Class A-6 Principal Balance, (iii) as to Class B-1 Certificates, the Class
B-1 Principal Balance together with any Unpaid Class B-1 Interest Shortfall and
one month's interest at the Class B-1 Remittance Rate on the Class B-1 Principal
Balance, (iv) as to Class B-2 Certificates, the Class B-2 Principal Balance
together with any Unpaid Class B-2 Interest Shortfall and one month's interest
at the Class B-2 Remittance Rate on the Class B-2 Principal Balance (v) to the
Class C Certificateholders, the remaining Overcollateralization Amount together
with the Class C Distribution Amount for such Remittance Date and (vi) as to the
RU Certificates, the amount which remains on deposit in the Certificate Account
(other than amounts retained to meet claims) after application pursuant to the
foregoing clauses. The distribution on the Final Remittance Date shall be in
lieu of the distribution otherwise required to be made an such Remittance Date
in respect of each Class of Certificates.
(g) In the event that all of the Certificateholders do not
surrender their Certificates for cancellation within three months after the time
specified in the above-mentioned written notice, the Company shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within three months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Company shall transfer to
itself all amounts remaining on deposit
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in the Certificate Account, to hold in trust for Certificateholders who have not
surrendered their Certificates for cancellation, together with the final record
list of Certificateholders, and the Company shall take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain in trust
hereunder.
(h) Each Certificateholder hereby irrevocably approves
and appoints the Trustee as its attorney-in-fact for the purposes
of adoption of the plan of complete liquidation.
SECTION 12.04. Acts of Certificateholders. (a) Except
as otherwise specifically provided herein, whenever Certificate-holder approval,
authorization, direction, notice, consent, waiver or other action is required
hereunder, such approval, authorization, direction, notice, consent, waiver or
other action shall be deemed to have been given or taken on behalf of, and shall
be binding upon, all Certificateholders if agreed to by Holders of Certificates
of the specified Class or Classes evidencing, as to each such Class, Percentage
Interests aggregating 51% or more.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where required, to the Servicer.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement and (subject to
Section 11.01) conclusive in favor of the Trustee, the Servicer and the Company
if made in the manner provided in this Section.
(c) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner.
(d) The ownership of Certificates shall be proved by the
Certificate Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted to
be done by the Trustee, the Servicer or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(f) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
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SECTION 12.05. Calculations. Except as otherwise provided in
this Agreement, all interest rate and basis point calculations under this
Agreement will be made on the basis of a 360-day year and twelve 30-day months
and will be carried out to at least three decimal places.
SECTION 12.06. Assignment or Delegation. Except as
specifically authorized hereunder, and except for the Servicer's obligations as
Servicer which are dealt with under Article V and Article VII, neither the
Company nor the Sponsor may convey and assign or delegate any of its rights or
obligations hereunder absent the prior written consent of Holders of
Certificates of each Class evidencing, as to each such Class, Percentage
Interests aggregating 66 2/3%-or more, and any attempt to do so without such
consent shall be void. It is understood that the foregoing does not prohibit the
pledge or assignment by the Company or the Sponsor of any right to payment
pursuant to Article VIII.
Notwithstanding the foregoing, any Person into which the
Company or the Sponsor may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company or
the Sponsor, as applicable, shall be a party, or any Person succeeding to the
business of the Company, shall be the successor of the Company or the Sponsor,
as applicable, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Company or the Sponsor, as applicable, shall
promptly notify Moody's and Fitch of any such merger to which it is a party.
SECTION 12.07. Amendment. (a) (i) This Agreement may
be amended from time to time by the parties hereto, without the consent of any
of the Certificateholders, to correct manifest error, to cure any ambiguity, to
correct or supplement any provisions herein which may be inconsistent with any
other provisions herein, as the case may be, to make such changes as are
necessary to maintain the status of any REMIC held by the Trust as a "real
estate mortgage investment conduit" under the REMIC Provisions of the Code or to
otherwise effectuate the benefits of such status to the Trust, the
Certificateholders, including, without limitation, to implement any provision
permitted by law that would enable a REMIC to avoid the imposition of any tax,
or to make any other provisions with respect to matters or questions that shall
not be inconsistent with the provisions of this Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder.
(ii) This Agreement may be amended by the parties hereto for
the purpose of removing the requirements described in Section 6.02(b) hereof
without the consent of any Certificateholder or the delivery of any Opinion of
Counsel otherwise required by this Section 12.07, but with the prior written
consent of Moody's and Fitch received by the Trustee.
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(b) This Agreement may also be amended from time to time by
the parties hereto, with the consent of Holders of Certificates of each Class
affected thereby evidencing, as to each such Class, Percentage Interests
aggregating 51% or more, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Certificateholders; provided, however,
that no such amendment shall (a) reduce in any manner the amount of, or delay
the timing of, collections of payments on the Contracts or distributions which
are required to be made on any Certificate, (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Certificates then arising outstanding, (c) result in the disqualification of
any REMIC held by the Trust as a REMIC under the Code, (d) adversely affect the
status of any REMIC held by the Trust as a REMIC or the status of the
Certificates as "regular interests" therein or (e) cause any tax (other than any
tax imposed on "net income from foreclosure property" under Section 860G(c)(1)
of the Code that would be imposed without regard to such amendment) to be
imposed on the Trust, including, without limitation, any tax imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code.
This Agreement may not be amended without the consent of all Residual
Certificateholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement which would
modify in any manner the rights of the Residual Certificateholders.
(c) This Agreement shall not be amended under this Section
without the consent of 100% of Certificateholders if such amendment would result
in the disqualification of any REMIC held by the Trust as a REMIC under the
Code.
(d) Concurrently with the solicitation of any consent pursuant
to this Section 12.07, the Trustee shall furnish written notification to Moody's
and Fitch of such solicitation. Promptly after the execution of any amendment
pursuant to this Section 12.07, the Trustee shall furnish written notification
of the substance of such amendment to Moody's, Fitch and each Certificate-
holder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 12.07 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement or otherwise.
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(g) In connection with any amendment pursuant to this Section,
the Trustee shall be entitled to receive an unqualified Opinion of Counsel to
the Servicer to the effect that such amendment is authorized or permitted by the
Agreement.
(h) In connection with any amendment pursuant to this Section,
the Trustee shall have received an unqualified Opinion of Counsel, the expense
of which shall not be an expense of the Trust, stating that any such amendment
(i) will not adversely affect the status of the Trust as a REMIC or the status
of the Certificates as "regular interests" therein, and (ii) will not cause any
tax (other than any tax imposed on "net income from foreclosure property" under
Section 860G(c)(1) of the Code that would be imposed without regard to such
amendment) to be imposed on the Trust, including, without limitation, any tax
imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code.
(i) Upon the execution of any amendment or consent pursuant to
this Section 12.07, this Agreement shall be modified in accordance therewith,
and such amendment or consent shall form a part of this Agreement for all
purposes, and every Certificate- holder hereunder shall be bound thereby.
SECTION 12.08. Notices. All communications and notices
pursuant hereto to the Servicer, the Company and the Trustee shall be in writing
and delivered or mailed to it at the appropriate following address:
If to the Seller:
Access Financial Receivables Corp.
1100 Abernathy Road, Suite 1205
Atlanta, Georgia 30328
Attention: President
Telephone: (770) 481-4640
Telecopier Number: (770) 828-0455
If to the Company or the Servicer:
Access Financial Corp.
1100 Abernathy Road, Suite 1200
Atlanta, Georgia 30328
Attention: President
Telephone: (770) 828-0040
Telecopier Number: (770) 828-0455
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If to the Sponsor:
Cargill Financial Services Corporation
6000 Clearwater Drive
Minnetonka, Minnesota 55343
Attention: Corporate Capital Group
Telephone: (612) 984-3910
Telecopier Number: (612) 984-3844
If to the Trustee:
Bank of New York
101 Barclay Street, Floor 12W
New York, New York 10286
Attention: Corporate Trust, MBS Administration
Telephone: (212) 815-2793
Telecopier Number: (212) 815-5309
If to Moody's:
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Telephone: (212) 553-0300
Telecopier Number: (212) 553-7820
If to Fitch:
Fitch Investors Service, L.P.
One State Street Plaza
New York, New York 10004
Attention: ABS Surveillance Group
Telephone: (212) 908-0500
Telecopier Number: (212) 480-4435
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Certificate Register.
SECTION 12.09. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement, together with the Loan Sale Agreement,
sets forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are superseded by
this Agreement. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
89
<PAGE>
<PAGE>
SECTION 12.10. Headings. The headings herein are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
SECTION 12.11. Governing Law. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York.
[THIS SPACE INTENTIONALLY LEFT BLANK]
90
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized this 29th day of May, 1996.
ACCESS FINANCIAL CORP.
By: /s/ Leslie Zejdlik Foster
------------------------------------
Name: Leslie Zejdlik Foster
Title: President
ACCESS FINANCIAL RECEIVABLES CORP.
By: /s/ Leslie Zejdlik Foster
------------------------------------
Name: Leslie Zejdlik Foster
Title: President
CARGILL FINANCIAL SERVICES CORPORATION
By: /s/ Kenneth M. Duncan
----------------------------------
Name: Kenneth M. Duncan
Title: Senior Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ Frank Austin
---------------------------------
Name: Frank Austin
Title: Assistant Treasurer
[Pooling and Servicing Agreement]
<PAGE>
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.)
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
=============================================================================
<TABLE>
<CAPTION>
Class A-1 (Senior) No. A-1-1
- -----------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate: 6.400%
May 1, 1996
Denomination: $33,544,000
- -----------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
June 17, 1996 Class A-1
Certificates:
$33,544,000
- -----------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Corp. November 16, 2026
CUSIP: 004313 AG7
</TABLE>
=============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS A-1 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
This certifies that CEDE & CO. is the registered owner of the
undivided Percentage Interest in all Class A-1 Certificates represented by the
original principal amount set
<PAGE>
<PAGE>
forth above in the Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the "Trust"), which
includes among its assets a pool of manufactured housing installment sale
contracts and installment loan agreements (including, without limitation, all
related security interests and any and all rights to receive payments which are
due pursuant thereto on or after May 1, 1996). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of May
1, 1996, between Access Financial Corp., as Servicer (the "Company"), Access
Financial Receivables Corp., as Seller, Cargill Financial Services Corporation,
as Sponsor and The Bank of New York, as Trustee of the Trust (the "Trustee").
This Certificate is one of the Certificates described in the Agreement and is
issued pursuant and subject to the Agreement. By acceptance of this Certificate
the holder assents to and becomes bound by the Agreement. To the extent not
defined herein, all capitalized terms have the meanings assigned to such terms
in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-1 Certificates with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificate- holder's Percentage Interest of the
portion of the Senior Distribution Amount to be distributed with respect to the
Class A-1 Certificates. The Maturity Date of this Certificate is November 16,
2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that none of the Company, the Sponsor, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information
A-2
<PAGE>
<PAGE>
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and immunities of the Trustee.
Copies of the Agreement and all amendments thereto will be provided to any
Certificateholder free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By: THE BANK OF NEW YORK
By:
-----------------------------------
Authorized Signatory
A-3
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
-----------------------------------
Signature
A-4
<PAGE>
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.)
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
=============================================================================
<TABLE>
<CAPTION>
Class A-2 (Senior) No. A-2-1
- -----------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate: 6.750%
May 1, 1996
Denomination: $26,360,000
- -----------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
June 17, 1996 Class A-2
Certificates:
$26,360,000
- -----------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Corp. November 16, 2026
CUSIP: 004313 AH5
</TABLE>
=============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS A-2 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
This certifies that CEDE & CO. is the registered owner of the
undivided Percentage Interest in all Class A-2 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the
"Trust"), which includes among its assets a pool of
<PAGE>
<PAGE>
manufactured housing installment sale contracts and installment loan agreements
(including, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after May 1,
1996). The Trust has been created pursuant to a Pooling and Servicing Agreement
(the "Agreement"), dated as of May 1, 1996, between Access Financial Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, Cargill
Financial Services Corporation, as Sponsor and The Bank of New York, as Trustee
of the Trust (the "Trustee"). This Certificate is one of the Certificates
described in the Agreement and is issued pursuant and subject to the Agreement.
By acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-2 Certificates with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificate- holder's Percentage Interest of the
portion of the Senior Distribution Amount to be distributed with respect to the
Class A-2 Certificates. The Maturity Date of this Certificate is November 16,
2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that none of the Company, the Sponsor, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all
A-6
<PAGE>
<PAGE>
amendments thereto will be provided to any Certificateholder free of charge upon
a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By: THE BANK OF NEW YORK
By:
------------------------------------
Authorized Signatory
A-7
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
A-8
<PAGE>
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-3 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.)
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
=============================================================================
<TABLE>
<CAPTION>
Class A-3 (Senior) No. A-3-1
- -----------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate: 6.975%
May 1, 1996
Denomination: $23,862,000
- -----------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
June 17, 1996 Class A-3
Certificates:
$23,862,000
- -----------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Corp. November 16, 2026
CUSIP: 004313 AJ1
</TABLE>
=============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS A-3 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
This certifies that CEDE & CO. is the registered owner of the
undivided Percentage Interest in all Class A-3 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the
"Trust"), which includes among its assets a pool of
<PAGE>
<PAGE>
manufactured housing installment sale contracts and installment loan agreements
(including, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after May 1,
1996). The Trust has been created pursuant to a Pooling and Servicing Agreement
(the "Agreement"), dated as of May 1, 1996, between Access Financial Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, Cargill
Financial Services Corporation, as Sponsor and The Bank of New York, as Trustee
of the Trust (the "Trustee"). This Certificate is one of the Certificates
described in the Agreement and is issued pursuant and subject to the Agreement.
By acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-3 Certificates with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificate- holder's Percentage Interest of the
portion of the Senior Distribution Amount to be distributed with respect to the
Class A-3 Certificates. The Maturity Date of this Certificate is November 16,
2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that none of the Company, the Sponsor, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all
A-10
<PAGE>
<PAGE>
amendments thereto will be provided to any Certificateholder free of charge upon
a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By: THE BANK OF NEW YORK
By:
------------------------------------
Authorized Signatory
A-11
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
A-12
<PAGE>
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-4 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.)
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
=============================================================================
<TABLE>
<CAPTION>
Class A-4 (Senior) No. A-4-1
- -----------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate: 7.300%
May 1, 1996
Denomination: $12,115,000
- -----------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
June 17, 1996 Class A-4
Certificates:
$12,115,000
- -----------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Corp. November 16, 2026
CUSIP: 004313 AK8
</TABLE>
=============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS A-4 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
This certifies that CEDE & CO. is the registered owner of the
undivided Percentage Interest in all Class A-4 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the
"Trust"), which includes among its assets a pool of
<PAGE>
<PAGE>
manufactured housing installment sale contracts and installment loan agreements
(including, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after May 1,
1996). The Trust has been created pursuant to a Pooling and Servicing Agreement
(the "Agreement"), dated as of May 1, 1996, between Access Financial Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, Cargill
Financial Services Corporation, as Sponsor and The Bank of New York, as Trustee
of the Trust (the "Trustee"). This Certificate is one of the Certificates
described in the Agreement and is issued pursuant and subject to the Agreement.
By acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-4 Certificates with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificate- holder's Percentage Interest of the
portion of the Senior Distribution Amount to be distributed with respect to the
Class A-4 Certificates. The Maturity Date of this Certificate is November 16,
2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that none of the Company, the Sponsor, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all
A-14
<PAGE>
<PAGE>
amendments thereto will be provided to any Certificateholder free of charge upon
a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By: THE BANK OF NEW YORK
By:
------------------------------------
Authorized Signatory
A-15
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
A-16
<PAGE>
<PAGE>
EXHIBIT A-5
FORM OF CLASS A-5 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.)
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
=============================================================================
<TABLE>
<CAPTION>
Class A-5 (Senior) No. A-5-1
- -----------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate: 7.575%
May 1, 1996
Denomination: $23,781,000
- -----------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
June 17, 1996 Class A-5
Certificates:
$23,781,000
- -----------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Corp. November 16, 2026
CUSIP: 004313 AL6
</TABLE>
=============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS A-5 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
This certifies that CEDE & CO. is the registered owner of the
undivided Percentage Interest in all Class A-5 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the
"Trust"), which includes among its assets a pool of
<PAGE>
<PAGE>
manufactured housing installment sale contracts and installment loan agreements
(including, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after May 1,
1996). The Trust has been created pursuant to a Pooling and Servicing Agreement
(the "Agreement"), dated as of May 1, 1996, between Access Financial Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, Cargill
Financial Services Corporation, as Sponsor and The Bank of New York, as Trustee
of the Trust (the "Trustee"). This Certificate is one of the Certificates
described in the Agreement and is issued pursuant and subject to the Agreement.
By acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-5 Certificates with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificate- holder's Percentage Interest of the
portion of the Senior Distribution Amount to be distributed with respect to the
Class A-5 Certificates. The Maturity Date of this Certificate is November 16,
2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that none of the Company, the Sponsor, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all
A-18
<PAGE>
<PAGE>
amendments thereto will be provided to any Certificateholder free of charge upon
a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By: THE BANK OF NEW YORK
By:
------------------------------------
Authorized Signatory
A-19
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
A-20
<PAGE>
<PAGE>
EXHIBIT A-6
FORM OF CLASS A-6 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.)
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
=============================================================================
<TABLE>
<CAPTION>
Class A-6 (Subordinate) No. A-6-1
- -----------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate: 7.975%
May 1, 1996
Denomination: $12,764,000
- -----------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
June 17, 1996 Class A-6
Certificates:
$12,764,000
- -----------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Corp. November 16, 2026
CUSIP: 004313 AM4
</TABLE>
=============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS A-6 (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
This certifies that CEDE & CO. is the registered owner of the
undivided Percentage Interest in all Class A-6 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the
"Trust"), which includes among its assets a pool of
<PAGE>
<PAGE>
manufactured housing installment sale contracts and installment loan agreements
(including, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after May 1,
1996). The Trust has been created pursuant to a Pooling and Servicing Agreement
(the "Agreement"), dated as of May 1, 1996, between Access Financial Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, Cargill
Financial Services Corporation, as Sponsor and The Bank of New York, as Trustee
of the Trust (the "Trustee"). This Certificate is one of the Certificates
described in the Agreement and is issued pursuant and subject to the Agreement.
By acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-6 Certificates with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificate- holder's Percentage Interest of the
portion of the Class A-6 Distribution Amount. The Maturity Date of this
Certificate is November 16, 2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that none of the Company, the Sponsor, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that either (i) it is not an employee benefit plan,
trust or account that is subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or an entity using the assets of any such plan, trust or
A-22
<PAGE>
<PAGE>
account or (ii) it is an insurance company general account and, pursuant to
Section I of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60"), the
acquisition and holding of this Certificate, and pursuant to Section III of PTCE
95-60, the servicing, management and operation of the Trust are with respect to
such Certificateholder exempt from the prohibited transaction provisions of
ERISA and the Code.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By: THE BANK OF NEW YORK
By:
------------------------------------
A-23
<PAGE>
<PAGE>
Authorized Signatory
A-24
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
A-25
<PAGE>
<PAGE>
EXHIBIT B-1
FORM OF CLASS B-1 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.)
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AND THE CLASS A-6 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
=============================================================================
<TABLE>
<CAPTION>
Class B-1 (Subordinate) No. B-1-1
- -----------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate:
May 1, 1996
Denomination: $17,551,000
- -----------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
June 17, 1996 Class B-1
Certificates:
$17,551,000
- -----------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Corp. November 16, 2026
CUSIP: 004313 AN2
</TABLE>
=============================================================================
<PAGE>
<PAGE>
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS B-1 (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
This certifies that CEDE & CO. is the registered owner of the
undivided Percentage Interest in all Class B-1 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the
"Trust"), which includes among its assets a pool of manufactured housing
installment sale contracts and installment loan agreements (including, without
limitation, all related security interests and any and all rights to receive
payments which are due pursuant thereto on or after May 1, 1996). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of May 1, 1996, between Access Financial Corp., as Servicer (the
"Company"), Access Financial Receivables Corp., as Seller, Cargill Financial
Services Corporation, as Sponsor and The Bank of New York, as Trustee of the
Trust (the "Trustee"). This Certificate is one of the Certificates described in
the Agreement and is issued pursuant and subject to the Agreement. By acceptance
of this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class B-1 Certificates with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificate- holder's Percentage Interest of the
portion of the Class B-1 Distribution Amount. The Maturity Date of this
Certificate is November 16, 2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that none of the Company, the Sponsor, the Seller,
B-2
<PAGE>
<PAGE>
the Servicer or the Trustee in its individual capacity is not personally liable
to the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that either (i) it is not an employee benefit plan,
trust or account that is subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or an entity using the assets of any such plan, trust or account or (ii) it
is an insurance company general account and, pursuant to Section I of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), the acquisition and holding of
this Certificate, and pursuant to Section III of PTCE 95-60, the servicing,
management and operation of the Trust are with respect to such Certificateholder
exempt from the prohibited transaction provisions of ERISA and the Code.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly
B-3
<PAGE>
<PAGE>
authenticated by the manual signature of a duly authorized officer of the
Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By: THE BANK OF NEW YORK
By:
------------------------------------
Authorized Signatory
B-4
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
B-5
<PAGE>
<PAGE>
EXHIBIT B-2
FORM OF CLASS B-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, THE CLASS A-6 CERTIFICATES AND THE CLASS B-1 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
=============================================================================
<TABLE>
<CAPTION>
Class B-2 (Subordinate) No. B-2-1
- -----------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate: ___%
May 1, 1996
Denomination: $9,573,000
- -----------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
June 17, 1996 Class B-2
Certificates:
$9,573,000
- -----------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Corp. November 16, 2026
</TABLE>
=============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS B-2 (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
<PAGE>
<PAGE>
This certifies that Access Financial Receivables Corp. is the
registered owner of the undivided Percentage Interest in all Class B-2
Certificates represented by the original principal amount set forth above in the
Access Financial Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificate Trust 1996-1 (the "Trust"), which includes among its assets a pool
of manufactured housing installment sale contracts and installment loan
agreements (including, without limitation, all related security interests and
any and all rights to receive payments which are due pursuant thereto on or
after May 1, 1996). The Trust has been created pursuant to a Pooling and
Servicing Agreement (the "Agreement"), dated as of May 1, 1996, between Access
Financial Corp., as Servicer (the "Company"), Access Financial Receivables
Corp., as Seller, Cargill Financial Services Corporation, as Sponsor and The
Bank of New York, as Trustee of the Trust (the "Trustee"). This Certificate is
one of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class B-2 Certificates with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificate- holder's Percentage Interest of the
portion of the Class B-2 Distribution Amount. The Maturity Date of this
Certificate is November 16, 2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that none of the Company, the Sponsor, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
B-7
<PAGE>
<PAGE>
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that either (i) it is not an employee benefit plan,
trust or account that is subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or an entity using the assets of any such plan, trust or account or (ii) it
is an insurance company general account and, pursuant to Section I of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), the acquisition and holding of
this Certificate, and pursuant to Section III of PTCE 95-60, the servicing,
management and operation of the Trust are with respect to such Certificateholder
exempt from the prohibited transaction provisions of ERISA and the Code.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
B-8
<PAGE>
<PAGE>
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By: THE BANK OF NEW YORK
By:
------------------------------------
Authorized Signatory
B-9
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
B-10
<PAGE>
<PAGE>
EXHIBIT C
FORM OF CLASS C CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO
SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT
FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, THE CLASS A-6 CERTIFICATES, THE CLASS B-1 CERTIFICATES AND THE
CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
===========================================================================
<TABLE>
<S> <C>
Class C No. C-1
(Subordinate)
- ---------------------------------------------------------------------------
<S> <C>
Cut-off Date: Remittance Rate: Adjustable
May 1, 1996 Denomination: 100% Percentage
Interest
First Remittance Date:
June 17, 1996
- ---------------------------------------------------------------------------
Servicer: Aggregate Denomination of All
Access Financial Corp. Class C Certificates: 100%
Percentage Interest
- ---------------------------------------------------------------------------
Maturity Date:
November 16, 2026
</TABLE>
===========================================================================
MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS C (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ACCESS FINANCIAL CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET
FORTH IN THE AGREEMENT.
<PAGE>
<PAGE>
This certifies that AFC FUNDING I, CORP. is the registered owner of
the undivided Percentage Interest represented by the original principal amount
set forth above in Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the "Trust"), which
includes among its assets a pool of manufactured housing installment sale
contracts and installment loan agreements (including, without limitation, all
related security interests and any and all rights to receive payments which are
due pursuant thereto on or after May 1, 1996). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of May
1, 1996, between Access Financial Corp., as Servicer (the "Company"), Access
Financial Receivables Corp., as Seller, Cargill Financial Services Corporation,
as Sponsor and The Bank of New York, as Trustee of the Trust (the "Trustee").
This Certificate is one of the Certificates described in the Agreement and is
issued pursuant and subject to the Agreement. By acceptance of this Certificate
the holder assents to and becomes bound by the Agreement. To the extent not
defined herein, all capitalized terms have the meanings assigned to such terms
in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Certificateholder holds a Class C Certificate with an aggregate Percentage
Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior, to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the Business Day immediately preceding such
Remittance Date, in an amount equal to the Certificateholder's Percentage
Interest of the portion of the Class C Distribution Amount. The Maturity Date of
this Certificate is November 16, 2026.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this Certificate,
the Certificateholder agrees to disclosure of his, her or its name and address
to other Certificateholders under the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that it is not an employee
C-2
<PAGE>
<PAGE>
benefit plan, trust or account that is subject to Employee Retirement Income
Security Act of 1974, as amended, or that is described in Section 4975(e)(1) of
the Code or an entity using the assets of any such plan, trust or account.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of the Certificate for
registration of transfer at the office or agency maintained by the Trustee in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder thereof or his or her
attorney duly authorized in writing, and thereupon one or mare new certificates
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of them nor any
such agent shall be affected by any notice to the contrary.
C-3
<PAGE>
<PAGE>
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By THE BANK OF NEW YORK
By:
------------------------------------
Authorized Officer
C-4
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ____________________________ the within Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate and does hereby irrevocably
constitute and appoint __________________________ Attorney to transfer the said
certificate on the Certificate Register maintained by the Trustee, with full
power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
C-5
<PAGE>
<PAGE>
EXHIBIT D-1
FORM OF CLASS RL CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, THE CLASS A-4 CERTIFICATES AND THE CLASS B CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 86G AND 860D OF THE INTERNAL
REVENUE CODE. THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH
TRANSFER MUST ALSO SATISFY THE OTHER REQUIREMENTS OF SECTION 9.02 OF SUCH
POOLING AND SERVICING AGREEMENT.
==============================================================================
<TABLE>
<CAPTION>
Class RL No. RL-1
(Subordinate)
- ------------------------------------------------------------------------------
<S> <C>
Cut-off Date: Percentage Interest: 100%
May 1, 1996
- ------------------------------------------------------------------------------
First Remittance Date: Maturity Date:
June 17, 1996 November 16, 2026
</TABLE>
==============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS RL INTEREST
This certifies that Access Financial Receivables Corp. is the
registered owner of the Residual Interest represented by this Certificate, and
entitled to certain distributions out of Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the "Trust"),
which includes among its assets a pool of manufactured housing installment sale
contracts and installment loan agreements (including, without limitation, all
related security interests and any and all rights to receive payments which are
<PAGE>
<PAGE>
due pursuant thereto on or after May 1, 1996) (the "Contracts"). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of May 1, 1996, between Access Financial Corp., as Servicer (the
"Company"), Access Financial Receivables Corp., as Seller, Cargill Financial
Services Corporation, as Sponsor and The Bank of New York, as Trustee of the
Trust (the "Trustee"). This Class RL Certificate is one of the Class RL
Certificates described in the Agreement and is issued pursuant and subject to
the Agreement. By acceptance of this Class RL Certificate the holder assents to
and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Class RL Certificateholder holds Class RL Certificates with an aggregate
Percentage Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least ten days prior to such Remittance
Date) to the registered Class RL Certificateholder at the address appearing on
the Certificate Register as of the Business Day immediately preceding such
Remittance Date, in an amount equal to the Percentage Interest specified above
in all amounts available to be distributed with respect to the Class RL
Certificates on such Remittance Date. Pursuant to the Agreement, only
miscellaneous amounts may be so distributed.
The Class RL Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Certificate
Account to the extent available for distribution to the Class RL
Certificateholder as provided in the Agreement for payment hereunder and that
the Trustee in its individual capacity is not personally liable to the Class RL
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that it is not an employee benefit plan, trust or
account that is subject to Employee Retirement Income Security Act of 1974, as
amended, or that is described in Section 4975(e)(1) of the Code or an entity
using the assets of any such plan, trust or account.
D-2
<PAGE>
<PAGE>
This Class RL Certificate does not purport to summarize the
Agreement and reference is made to the Agreement for information with respect to
the interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and immunities of the Trustee. Copies of the
Agreement and all amendments thereto will be provided to any Class RL
Certificateholder free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Class RL Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Class RL Certificate
for registration of transfer at the office or agency maintained by the Trustee
in New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder thereof or his or her
attorney duly authorized in writing, and thereupon one or more new Class RL
Certificates evidencing the same aggregate amount of Class RL Certificates will
be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations
therein set forth, this Class RL Certificate is exchangeable for new Class RL
Certificates of authorized denominations evidencing the same aggregate
Percentage Interest as requested by the holder surrendering the same.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Class RL
Certificate is registered as the owner hereof for all purposes, and none of them
nor any such agent shall be affected by any notice to the contrary.
The holder of this Class RL Certificate, by acceptance hereof,
agrees that, in accordance with the requirements of Section 86OD(b)(1) of the
Code, the federal tax return of the Lower-Tier REMIC held by the Trust for its
first taxable year shall provide that the Lower-Tier REMIC held by the Trust
elects to be treated as a "real estate mortgage investment conduit" (a "REMIC")
under the Code for such taxable year and all subsequent taxable years. The Class
RL Certificates shall be the "residual interest" in the REMIC. In addition, the
holder of this Class RL Certificate, by acceptance hereof, (i) agrees to file
tax returns consistent with and in accordance with any elections, decisions or
other reports made or filed with regard to federal, state or local taxes on
behalf of the Trust, and (ii) agrees to cooperate with the Company in connection
with examinations of the Trust's affairs by tax authorities, including
administrative and judicial proceedings, and (iii) makes the additional
agreements, designations and appointments, and undertakes the responsibilities,
set forth in Section 9.02 of the Agreement.
D-3
<PAGE>
<PAGE>
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By THE BANK OF NEW YORK
By:
------------------------------------
Authorized Officer
D-4
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate, and does hereby
irrevocably constitute and appoint ______________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
D-5
<PAGE>
<PAGE>
EXHIBIT D-2
FORM OF CLASS RU CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, THE CLASS A-6 CERTIFICATES AND THE CLASS B CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE. THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH
TRANSFER MUST ALSO SATISFY THE OTHER REQUIREMENTS OF SECTION 9.02 OF SUCH
POOLING AND SERVICING AGREEMENT.
==============================================================================
<TABLE>
<CAPTION>
Class RU No. RU-1
(Subordinate)
- ------------------------------------------------------------------------------
<S> <C>
Cut-off Date: Percentage Interest: 100%
May 1, 1996
- ------------------------------------------------------------------------------
First Remittance Date: Maturity Date:
June 17, 1996 November 16, 2026
==============================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES 1996-1, CLASS RU INTEREST
This certifies that Access Financial Receivables Corp. is the
registered owner of the Residual Interest represented by this Certificate, and
entitled to certain distributions out of Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust 1996-1 (the "Trust"),
which includes among its assets a pool of manufactured housing installment sale
contracts and installment loan agreements (including, without limitation, all
related security interests and any and all rights to receive payments which are
<PAGE>
<PAGE>
due pursuant thereto on or after May 1, 1996) (the "Contracts"). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of May 1, 1996, between Access Financial Corp., as Servicer (the
"Company"), Access Financial Receivables Corp., as Seller, Cargill Financial
Services Corporation, as Sponsor and The Bank of New York, as Trustee of the
Trust (the "Trustee"). This Class RU Certificate is one of the Class RU
Certificates described in the Agreement and is issued pursuant and subject to
the Agreement. By acceptance of this Class RU Certificate the holder assents to
and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the
fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in June
1996, so long as the Agreement has not been terminated, by check (or, if such
Class RU Certificateholder holds Class RU Certificates with an aggregate
Percentage Interest of at least 10% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least ten days prior to such Remittance
Date) to the registered Class RU Certificateholder at the address appearing on
the Certificate Register as of the Business Day immediately preceding such
Remittance Date, in an amount equal to the Percentage Interest specified above
in all amounts available to be distributed with respect to the Class RU
Certificates on such Remittance Date. Pursuant to the Agreement, only
miscellaneous amounts may be so distributed.
The Class RU Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Certificate
Account to the extent available for distribution to the Class RU
Certificateholder as provided in the Agreement for payment hereunder and that
the Trustee in its individual capacity is not personally liable to the Class RU
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that it is not an employee benefit plan, trust or
account that is subject to Employee Retirement Income Security Act of 1974, as
amended, or that is described in Section 4975(e)(1) of the Code or an entity
using the assets of any such plan, trust or account.
D-7
<PAGE>
<PAGE>
This Class RU Certificate does not purport to summarize the
Agreement and reference is made to the Agreement for information with respect to
the interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and immunities of the Trustee. Copies of the
Agreement and all amendments thereto will be provided to any Class RU
Certificateholder free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set
forth therein, the transfer of this Class RU Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Class RU Certificate
for registration of transfer at the office or agency maintained by the Trustee
in New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder thereof or his or her
attorney duly authorized in writing, and thereupon one or more new Class RU
Certificates evidencing the same aggregate amount of Class RU Certificates will
be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations
therein set forth, this Class RU Certificate is exchangeable for new Class RU
Certificates of authorized denominations evidencing the same aggregate
Percentage Interest as requested by the holder surrendering the same.
The Company, the Servicer, the Seller, the Sponsor and the Trustee
and any agent of any of them may treat the person in whose name this Class RU
Certificate is registered as the owner hereof for all purposes, and none of them
nor any such agent shall be affected by any notice to the contrary.
The holder of this Class RU Certificate, by acceptance hereof,
agrees that, in accordance with the requirements of Section 86OD(b)(1) of the
Code, the federal tax return of the Upper-Tier REMIC held by the Trust for its
first taxable year shall provide that the Upper-Tier REMIC held by the Trust
elects to be treated as a "real estate mortgage investment conduit" (a "REMIC")
under the Code for such taxable year and all subsequent taxable years. The Class
RU Certificates shall be the "residual interest" in the REMIC. In addition, the
holder of this Class RU Certificate, by acceptance hereof, (i) agrees to file
tax returns consistent with and in accordance with any elections, decisions or
other reports made or filed with regard to federal, state or local taxes on
behalf of the Trust, and (ii) agrees to cooperate with the Company in connection
with examinations of the Trust's affairs by tax authorities, including
administrative and judicial proceedings, and (iii) makes the additional
agreements, designations and appointments, and undertakes the responsibilities,
set forth in Section 9.02 of the Agreement.
D-8
<PAGE>
<PAGE>
IN WITNESS WHEREOF, Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust 1996-1 has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated: May 29, 1996
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1996-1
By THE BANK OF NEW YORK
By:
------------------------------------
Authorized Officer
D-9
<PAGE>
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate, and does hereby
irrevocably constitute and appoint ______________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:
------------------------------------
Signature
D-10
<PAGE>
<PAGE>
EXHIBIT E
FORM OF ASSIGNMENT
In accordance with the Pooling and Servicing Agreement (the
"Agreement"), dated as of May 1, 1996 among Access Financial Corp., as Servicer
(the "Company"), Access Financial Receivables Corp., as Seller (the "Seller"),
Cargill Financial Services Corporation, as Sponsor (the "Sponsor") and The Bank
of New York, as Trustee of the Trust (the "Trustee"), the Seller does hereby
transfer, assign, set over and otherwise convey to the Trustee (i) all right,
title and interest in the manufactured housing installment sale contracts
described in the List of Contracts attached hereto as Exhibit A (collectively,
the "Contracts") and installment loan agreements and the proceeds thereof
(including, without limitation, all related Mortgages and other security
interests created thereby and any and all rights to receive payments which are
due pursuant thereto from and after May 1, 1996, but excluding any rights to
receive payments which were due pursuant thereto prior to May 1, 1996)
identified in the List of Contracts attached hereto, (ii) all rights under every
Hazard Insurance Policy on a Manufactured Home securing a Contract for the
benefit of the creditor of such Contract and all rights under all blanket hazard
insurance policy and the proceeds from the Errors and Omissions Protection
Policy to the extent they relate to the Manufactured Homes, (iii) all documents
contained in the Contract Files, (iv) the Seller's rights under the Loan Sale
Agreement and (v) all proceeds in any way derived from any of the foregoing.
Capitalized terms used herein but not defined herein have the meanings assigned
to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed this 29th day of May, 1996.
ACCESS FINANCIAL RECEIVABLES CORP.
By:
------------------------------------
Name:
-----------------------------
Title:
----------------------------
<PAGE>
<PAGE>
EXHIBIT F
FORM OF TRUSTEE'S ACKNOWLEDGMENT
The Bank of New York, a banking corporation organized under the laws
of the State of New York, acting as trustee (the "Trustee") of the trust created
pursuant to the Pooling and Servicing Agreement dated as of May 1, 1996 among
Access Financial Corp., as Servicer (the "Company"), Access Financial
Receivables Corp., as Seller, Cargill Financial Services Corporation, as Sponsor
and The Bank of New York, as Trustee of the Trust (the "Trustee") (the
"Agreement") (all capitalized terms used herein without definition having the
respective meanings specified in the Agreement) acknowledges, pursuant to
Section 2.03 of the Agreement, that the Trustee has received the manufactured
housing installment sale contracts described in the List of Contracts, and
further acknowledges that it will administer the Trust Estate, in trust,
pursuant to the terms of the Agreement. Capitalized terms used herein but not
defined herein have the meanings assigned to them in the Agreement.
IN WITNESS WHEREOF, The Bank of New York, as Trustee, has caused
this acknowledgment to be executed by its duly authorized officer as of this
29th day of May, 1996.
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
Name:
-----------------------------
Title:
----------------------------
<PAGE>
<PAGE>
EXHIBIT G
FORM OF LIMITED POWER OF ATTORNEY
Know All Men by These Presents that Access Financial Corp. hereby
makes, constitutes and appoints The Bank of New York, acting through its duly
appointed officers or any of them, its true and lawful attorney, for it and in
its name and on its behalf, for the sole and exclusive purpose of authorizing
said attorney to sign, endorse and deliver in its behalf (1) any Mortgage,
instrument or document and also any other writing which may be used in
connection therewith to evidence any obligation of the undersigned or any
security interest in any Contract; (2) any check or other instrument for the
payment thereof; and (3) any release, reconveyance, satisfaction, assignment or
notice of assignment of any Mortgage. This power of attorney shall not be used
to create any new obligation of the undersigned or for the institution of suit
in the name of the undersigned.
This Limited Power of Attorney has been given pursuant to Section
5.12(d) of the Pooling and Servicing Agreement dated as of May 1, 1996, among
Access Financial Corp., The Bank of New York, and the other parties named
therein.
In Witness Whereof, and intending to be legally bound hereby, the
undersigned has caused this Limited Power of Attorney to be executed this 29th
day of May 1996.
ACCESS FINANCIAL CORP.
By:
-------------------------------------
Name:
Title:
State of New York :
: ss.
County of New York :
On This, the 29th day of May, 1996, before me, a Notary Public,
personally appeared, ________________________, who acknowledged that he executed
the foregoing instrument for the purposes therein contained.
Witness my hand and Notarial Seal the day and year above written.
-------------------------------------
Notary Signature
My Commission Expires on ---------------------------
<PAGE>
<PAGE>
EXHIBIT H
FORM OF MONTHLY REPORT
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATES, SERIES 1996-1
Distribution Date: __________
</TABLE>
<TABLE>
<S> <C> <C>
Amount reimbursable to the Servicer _________
SENIOR CERTIFICATES
1.(a) Amount Available (including Monthly
Servicing Fee)
(b) Class A-6 Interest Deficiency Amount
(if any) and Class B-1 Interest
Deficiency Amount (if any) withdrawn
for prior Remittance Date
(c) Amount Available after giving effect
to withdrawal of Class A-6 Interest
Deficiency Amount and Class B-1
Interest Deficiency Amount for prior
Remittance Date
INTEREST
2. Aggregate interest
(a) Class A-1 Remittance Rate 6.400%
(b) Class A-1 Interest ---------
(c) Class A-2 Remittance Rate 6.750%
(d) Class A-2 Interest ---------
(e) Class A-3 Remittance Rate 6.975%
(f) Class A-3 Interest ---------
(g) Class A-4 Remittance Rate 7.300%
(h) Class A-4 Interest ---------
(i) Class A-5 Remittance Rate 7.575%
(j) Class A-5 Interest ---------
3. Amount applied to:
(a) Unpaid Senior Interest Shortfall ---------
4. Remaining:
(a) Unpaid Senior Interest Shortfall ---------
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Count
<S> <C> <C>
PRIOR PERIOD ENDING SCHEDULED BALANCE ---- --------
PRINCIPAL
5. Formula Principal Distribution Amount:
(a) Scheduled principal --------
(b) Principal Prepayments ---- --------
(c) Liquidated Contracts ---- --------
(d) Repurchases --------
(e) Accelerated Principal --------
TOTAL ========
6. Pool Scheduled Principal Balance --------
7. Unpaid Senior Principal Shortfall (if any) following
prior Remittance Date --------
8. Senior Percentage for such Remittance
Date (Until Class B Cross-over Date, and on each
Remittance Date thereafter unless each
Class B Principal Distribution Test is
satisfied, equals Senior Principal
Balance divided by Pool Scheduled
Principal Balance) --------
9. Senior Percentage for the following Remittance Date --------
10. Senior principal distribution:
(a) Class A-1 --------
(b) Class A-2 --------
(c) Class A-3 --------
(d) Class A-4 --------
(e) Class A-5 --------
11. (a) Class A-1 Principal Balance --------
(b) Class A-2 Principal Balance --------
(c) Class A-3 Principal Balance --------
(d) Class A-4 Principal Balance --------
(e) Class A-5 Principal Balance --------
12. Unpaid Senior Principal Shortfall (if any) following
current Remittance Date --------
</TABLE>
H-2
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CLASS A-6 CERTIFICATES
13. Class A-6 Amount Available --------
INTEREST
14. Aggregate interest --------
(a) Class A-6 Remittance Rate (____% unless Weighted
Average Contract Rate is below %
____%)
(b) Class A-6 Interest --------
15. Amount applied to Unpaid Class A-6 Interest Shortfall --------
16. Amount applied to Class A-6 Interest Deficiency Amount --------
17. Remaining unpaid Class A-6 Interest Deficiency Amount --------
18. Remaining Unpaid Class A-6 Interest Shortfall --------
PRINCIPAL
19. Formula Principal Distribution Amount:
(a) Scheduled principal --------
(b) Principal Prepayments --------
(c) Liquidated Contracts --------
(d) Repurchases --------
20. Pool Scheduled Principal Balance --------
21. Class A-6 Percentage after prior Remittance Date ----% --------
22. Class A-6 Percentage for such Remittance Date ----% --------
23. Class A-6 Percentage for the following Remittance Date
----% --------
24. Class A-6 principal distribution:
(a) Class A-6 (current) --------
(b) Unpaid Class A-6 Principal Shortfall (if any)
following prior Remittance Date --------
25. Unpaid Class A-6 Principal Shortfall (if any) following
current Remittance Date --------
</TABLE>
H-3
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
CLASS B PRINCIPAL DISTRIBUTION TESTS (TESTS
MUST BE SATISFIED ON AND AFTER THE
REMITTANCE DATE OCCURRING IN JUNE 1999)
26. Average Sixty-Day Delinquency Ratio Test
(a) Sixty-Day Delinquency Ratio for current
Remittance Date --------
(b) Average Sixty-Day Delinquency Ratio
(arithmetic average of ratios for this
month and two preceding months; may not
exceed ____%) --------
27. Average Thirty-Day Delinquency Ratio Test
(a) Thirty-Day Delinquency Ratio for current
Remittance Date --------
(b) Average Thirty-Day Delinquency Ratio
(arithmetic average of ratios for this
month and two preceding months; may not
exceed ____%) --------
28. Cumulative Realized Losses Test
(a) Cumulative Realized Losses for current
Remittance Date (as a percentage of Cut-off
Date Pool Principal Balance; may not exceed
7% from June 1, 2000 to May 31, 2001, 8%
from June 1, 2001 to May 31, 2002, 9% from
June 1, 2002 and thereafter)
----%
29. Current Realized Losses Test
(a) Current Realized Losses for current
Remittance Date
(b) Current Realized Loss Ratio (total Realized
Losses during the 12 immediately preceding
Collection Period, divided by the
arithmetic average of Pool Scheduled
Principal Balances as of the last day of
the preceding Collection Period and the
Pool Scheduled Principal Balance as of the
last day of the immediately preceding
Collection Period; may not exceed ____%) --------
</TABLE>
H-4
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
30. Class B Principal Balance Test
(a) Class B Principal Balance (before any
distributions on current Remittance Date)
divided by Pool Scheduled Principal Balance
for prior Remittance Date (must equal or
exceed ____%) and the Class B Principal
Balance as of such Remittance Date is
greater than or equal to $_________ --------
CLASS B-1 CERTIFICATES
31. Amount Available less the Senior Distribution
Amount and Class A-6 Distribution Amount --------
INTEREST
32. Class B-1 Remittance Rate 8.040%
33. Class B-1 Interest --------
34. Current interest --------
35. Amount applied to Unpaid Class B-1 Interest
Shortfall --------
36. Amount applied to Class B-1 Interest Deficiency
Amount --------
37. Remaining unpaid Class B-1 Interest Deficiency
Amount --------
38. Remaining Unpaid Class B-1 Interest Shortfall --------
PRINCIPAL
39. Unpaid Class B-1 Principal Shortfall (if any)
following prior Remittance Date --------
40. (a) Class B Percentage for such Remittance Date
(until Class B Cross-over Date, and on each
Remittance Date thereafter unless each
Class B Principal Distribution Test is
satisfied, equals zero. Thereafter, if each
Class B Principal Distribution Test is
satisfied, equals 100% minus Senior
Percentage)
----%
(b) Class B Percentage for the following
Remittance Date
----%
41. Current Principal (Class B Percentage of Formula
Principal Distribution Amount) --------
42. (a) Class B-1 Principal Shortfall --------
</TABLE>
H-5
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
(b) Unpaid Class B-1 Principal Shortfall --------
43. Class B Principal Balance --------
44. Class B-1 Principal Balance --------
CLASS B-2 CERTIFICATES
45. Remaining Amount Available --------
INTEREST
46. Class B-2 Remittance Rate (____%, unless Weighted
Average Contract Rate is less than ____%) ----%
47. Class B-2 Interest --------
48. Current interest --------
49. Amount applied to Unpaid Class B-2 Interest
Shortfall --------
50. Remaining Unpaid Class B-2 Interest Shortfall --------
PRINCIPAL
51. Unpaid Class B-2 Principal Shortfall (if any)
following prior Remittance Date --------
52. Class B-2 Principal Liquidation Loss Amount --------
53. Current principal (zero until Class B-1 paid
down; thereafter, Class B Percentage of Formula
Principal Distribution Amount) --------
54. Class B-2 Principal Balance --------
SENIOR, CLASS A-6, CLASS B-1 AND CLASS B-2 CERTIFICATES
AGGREGATE BALANCES OF DELINQUENT CONTRACTS
AS OF MONTH-END
56. 30 - 59 days --------
57. 60 days or more --------
58. Manufactured Homes repossessed --------
59. Manufactured Homes repossessed but remaining in
inventory --------
60. Weighted Average Contract Rate of all outstanding
Contracts ----%
</TABLE>
H-6
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
RESIDUAL CERTIFICATES
61. (a) Monthly Servicing Fee (deducted from
Certificate Account balance to arrive at
Amount Available if the Company is not the
Servicer; deducted from funds remaining
after payment of Senior Distribution
Amount, Class A-6 Distribution Amount,
Class B-1 Distribution Amount and Class B-2
Distribution Amount, if the Company is the
Servicer) --------
(b) Monthly interest on Certificate Account --------
CLASS A-6, CLASS B-1 AND CLASS B-2
CERTIFICATES
64. Class A-6 Interest Deficiency on such Remittance
Date --------
65. Class B-1 Interest Deficiency on such Remittance
Date --------
66. Class B-2 Interest Deficiency on such Remittance
Date --------
REPOSSESSED CONTRACTS
67. Repossessed Contracts --------
68. Repossessed Contracts Remaining in Inventory --------
ACCELERATED PRINCIPAL CALCULATION
69. Remaining Amount Available --------
70. Accelerated Principal --------
RESIDUAL CERTIFICATES
71. Class C Distribution Amount (excess, if any, 1/12
Weighted Net Contract Rate at beginning x pool
scheduled balance at beginning MINUS the
Certificate Interest [A-1 to B-2] Distribution
Amount for date.) --------
72. Release Amount (if B-2 is zero) --------
73. Reimburse Residual Certificate Holder per Section
10.06 (REMIC tax matters) --------
H-7
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
74. Remaining to Residual Holder --------
</TABLE>
Please contact the Bondholder Relations Department of The Bank of New York at
(212) 815-2793 with any questions regarding this Statement or your Distribution.
H-8
<PAGE>
<PAGE>
EXHIBIT I
FORM OF CERTIFICATE OF SERVICING OFFICER
ACCESS FINANCIAL CORP.
The undersigned certifies that he is a [title] of Access Financial
Corp., a Delaware corporation (the "Company"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of the Company
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the
"Agreement") dated as of May 1, 1996 between Access Financial Corp., as Servicer
(the "Company"), Access Financial Receivables Corp., as Seller, Cargill
Financial Services Corporation, as Sponsor and The Bank of New York, as Trustee
of the Trust (the "Trustee") (all capitalized terms used herein without
definition having the respective meanings specified in the Agreement), and
further certifies that:
1. The Monthly Report for the period from _______ to _________
attached to this certificate is complete and accurate in accordance with the
requirements of Sections 6.01 and 6.02 of the Agreement;
2. As of the date hereof, no Event of Termination or event that with
notice or lapse of time or both would become an Event of Termination has
occurred; and
3. As of the close of the most recent Collection Period, the
weighted average number of months in inventory of all non-liquidated
Manufactured Homes is ____________.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ____
day of __________, 19_.
ACCESS FINANCIAL CORP.
By:
----------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
<PAGE>
<PAGE>
EXHIBIT J
REPORT ON AGREED UPON PROCEDURES
The Bank of New York
101 Barclay Street
Floor 12W
New York, New York 10286
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Fitch Investors Service, L.P.
99 Church Street
New York, New York 10007
Cargill Financial Services Corporation
6000 Clearwater Drive
Minnetonka, Minnesota 55343
The Internal Audit Department of Access Financial Corp. ("Internal Audit") has
performed the procedures enumerated below, which were agreed to by The Bank of
New York, Access Financial Corp. ("AFC") and Cargill Financial Services
Corporation ("CFSC") with respect to the Access Financial Manufactured Housing
Contract Senior/Subordinated Pass-Through Certificates, Series 1996-1 solely to
assist the parties to the agreement in determining if there has been a default
in the fulfillment of the obligations specified below for the month ended
[______]. The sufficiency of these procedures is solely the responsibility of
the specified users of this report. Consequently, we make no representation
regarding the sufficiency of the procedures described below either for the
purpose for which this report has been requested or for any other purpose.
Internal Audit tested a sufficient number of transactions governed by the below
criteria so that the testing was representative of AFC's volume of transactions.
The working papers prepared as a result of the procedures performed accurately
reflect the work performed and the working papers are complete.
<TABLE>
<CAPTION>
Population Number (N) Sample Size
-------------------- -----------
<S> <C>
100 or greater 100
50 to 100 25
0 to 50 N or 20, whichever is smaller
</TABLE>
<PAGE>
<PAGE>
Procedures and Findings
A. COLLECTION OF CONTRACT PAYMENTS
Information and Procedures. Internal Audit obtained from management a
reconciliation of lockbox collections and internal collections (i.e.,
received directly from obligors through postal service channels or Western
Union wire services) to postings against the loan portfolio in the
aggregate as of the close of business for the month ended [__________] and
performed the procedures indicated with respect to such information.
1. Tested the reconciliation for reasonableness and mechanical
accuracy. This procedure included (1) tracing the balance of loan
principal outstanding as of the close of business as of the
beginning of the month ended [_______] on the reconciliation to the
trial balance obtained from the TMS loan servicing system, (2)
tracing the reconciliation's balance as of the end of the month to a
trial balance obtained from the TMS loan servicing system, (3)
comparing principal additions for the month to the summation of
newly funded contracts, (4) comparing the summation of payments
applied during the month to the TMS loan servicing system and (5) an
examination and validation of any reconciling items exceeding $1,000
or, in the auditor's opinion, of an uncommon nature. All exceptions
will be noted in "Findings" below and for purposes of this procedure
an error rate of <2% will be considered a tolerable variance.
Re-tests of this procedure are documented for the independent
accountant's letter.
Findings:
2. Determined that cash collections were deposited into the correct
trustee account by (a) tracing a sample of individual deposits
contained in the deposit supporting documentation to a listing of
contracts allocated to the Certificateholders of Access Financial
Corp. Series 1996-1 Pass-Through Certificates or held for sale; (b)
determining that the individual contracts are properly identified as
to ownership in the servicing system; and tracing a sample of
posting reported in the servicing system for Certificateholders back
to deposit documentation to the trust account as defined in Section
____ of the Pooling and Servicing Agreement. All exceptions will be
noted in "Findings" below and for purposes of this procedure an
error rate of <1% will be considered a
J-2
<PAGE>
<PAGE>
tolerable variance. Re-tests of this procedure are documented in the
independent accountant's letter.
Findings:
B. REALIZATION UPON CONTRACTS
Information and Procedures. Internal Audit obtained from management an
analysis of all repossessions and/or foreclosures occurring during the
month ended [________] and performed the procedures indicated with respect
to such information.
1. Agreed the analysis balances to the appropriate asset, liability,
income/expense and gain/loss accounts reflected in the general
ledger as of the end of the month. Recalculated gains and losses on
a test basis for compliance with policies and procedures (i.e.,
application of pre-non-accrual status interest towards the gain/loss
determination). All exceptions will be noted in "Findings" below and
for purposes of this procedure an error rate of <3% will be
considered a tolerable variance. Re-tests of this procedure are
documented for the independent accountant's letter.
C. REPORTING TO CERTIFICATEHOLDERS
1. Obtained copies of the remittance Statements to Certificateholders
as required and defined under Reports to Certificateholders of the
Pooling and Servicing Agreement for Access Financial Corp. Series
1996-1 Pass-Through Certificates and performed the following:
a) Tested the allocation and distribution of interest in
accordance with the pass-through of interest for each
certificate type as defined in Section _____ of the Pooling
and Servicing Agreement.
Findings:
b) Tested the allocation and distribution of principal in
accordance with the pass-through of principal for each
certificate type as defined in Section _____ of the Pooling
and Servicing Agreement. When appropriate, agreed information
reported to servicing system reports used in the
J-3
<PAGE>
<PAGE>
determination of the proper application of principal.
Findings:
c) Tested the Series 1996-1 Pass-Through Certificate's pool
performance reports as defined in the Pooling and Servicing
Agreement. Section _____ to determine the reasonableness of
the information disclosed. When appropriate, agreed
information to servicing system reports and detail.
Findings:
J-4
<PAGE>
<PAGE>
EXHIBIT K
FORM OF REPRESENTATION LETTER
The Bank of New York
Attn: Corporate Trust Operations
101 Barclay Street
New York, New York 10286
Access Financial Corp.
1100 Abernathy Road
Atlanta, Georgia 30328
Re: Manufactured Housing Contract
Senior/Subordinate Pass-Through
Certificates, Series 1996-1,
[Class B-2, Class C or Residual]
The undersigned (the "Transferee") has agreed to purchase
from_______________________________(the "Transferor") the following:
<TABLE>
<CAPTION>
Class Number
----- ------
<S> <C>
_____ ______
_____ ______
_____ ______
_____ ______
_____ ______
</TABLE>
A. Rule 144A "Qualified Institutional Buyers" should complete this
section
I. The Transferee is (check one):
<TABLE>
<S> <C>
____ (i) An insurance company, as defined in Section 2(13) of
the Securities Act of 1933, as amended (the "Securities
Act"), (ii) an investment company registered under the
Investment Company Act of 1940, as amended (the
"Investment Company Act"), (iii) a business development
company as defined in Section 2(a)(48) of the Securities
Act, (iv) a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of
1958, as amended, (v) a plan established and maintained
by a state,
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<S> <C>
____ its political subdivisions, or any agency or
instrumentality of a state or its political
subdivisions, for the benefit of its employees, (vi) an
employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), (vii) a business development company
as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940, as amended, (viii) an organization
described in Section 501(c)(3) of the Internal Revenue
Code, corporation (other than a bank as defined in
Section 3(a)(2) of the Securities Act or a savings and
loan association or other institution referenced in
Section 3(a)(2) of the Securities Act or a foreign bank
or savings and loan association or equivalent
institution), partnership, or Massachusetts or similar
business trust; or (ix) an investment advisor registered
under the Investment Advisors Act of 1940, as amended,
which, for each of (i) through (ix), owns and invests on
a discretionary basis at least $100 million in
securities other than securities of issuers affiliated
with the Transferee, securities issued or guaranteed by
the United States or a person controlled or supervised
by and acting as an instrumentality of the government of
the United States pursuant to authority granted by the
Congress of the United States, bank deposit notes and
certificates of deposit, loan participations, repurchase
agreements, securities owned but subject to a repurchase
agreement, and currency, interest rate and commodity
swaps (collectively, "Excluded Securities");
____ a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") that in the aggregate owns and invests
on a discretionary basis at least $10 million of
securities other than Excluded Securities and securities
constituting the whole or part of an unsold allotment
to, or subscription by, Transferee as a participant in a
public offering;
____ an investment company registered under the Investment
Company Act that is part of a family of investment
companies (as defined
K-2
<PAGE>
<PAGE>
</TABLE>
<TABLE>
<S> <C>
in Rule 144A of the Securities and Exchange Commission)
which own in the aggregate at least $100 million in
securities other than Excluded Securities and securities
of issuers that are part of such family of investment
companies;
____ an entity, all of the equity owners of which are
entities described in this Paragraph A(I);
____ a bank as defined in Section 3(a)(2) of the Securities
Act, any savings and loan association or other
institution as referenced in Section 3(a)(5)(A) of the
Securities Act, or any foreign bank or savings and loan
association or equivalent institution that in the
aggregate owns and invests on a discretionary basis at
least $100 million in securities other than Excluded
Securities and has an audited net worth of at least $25
million as demonstrated in its latest annual financial
statements, as of a date not more than 16 months
preceding the date of transfer of the Certificates to
the Transferee in the case of a U.S. Bank or savings and
loan association, and not more than 18 months preceding
such date in the case of a foreign bank or savings
association or equivalent institution.
</TABLE>
II. The Transferee is acquiring such Certificates solely for its own
account, for the account of one or more others, all of which are "Qualified
Institutional Buyers" within the meaning of Rule 144A, or in its capacity as a
dealer registered pursuant to Section 15 of the Exchange Act acting in a
riskless principal transaction on behalf of a "Qualified Institutional Buyer".
The Transferee is not acquiring such Certificates with a view to or for the
resale, distribution, subdivision or fractionalization thereof which would
require registration of the Certificates under the Securities Act.
B. "Accredited Investors" should complete this
Section
I. The Transferee is (check one):
<TABLE>
<S> <C>
____ a bank within the meaning of Section 3(a)(2) of the
Securities Act;
</TABLE>
K-3
<PAGE>
<PAGE>
<TABLE>
<S> <C>
____ a savings and loan association or other institution
defined in Section 3(a)(5) of the Securities Act;
____ a broker or dealer registered pursuant to the Exchange
Act;
____ an insurance company within the meaning of Section 2(13)
of the Securities Act;
____ an investment company registered under the Investment
Company Act;
____ an employee benefit plan within the meaning of Title I
of ERISA, which has total assets in excess of
$5,000,000;
____ another entity which is an "accredited investor" within
the meaning of paragraph (fill in) of subsection (a) of
Rule 501 of the Securities and Exchange Commission.
</TABLE>
II. The Transferee is acquiring such Certificates solely for its own
account, for investment, and not with a view to or for the resale, distribution,
subdivision or fractionalization thereof which would require registration of the
Certificates under the Securities Act.
C. If the Transferee is unable to complete one of paragraph A(I) or
paragraph B(I) above and is not a designated PORTAL depository organization, the
Transferee must furnish an opinion in form and substance satisfactory to the
Trustee of counsel satisfactory to the Trustee to the effect that such purchase
will not violate any applicable federal or state securities laws.
D. The Transferee is not a pension or benefit plan or individual
retirement arrangement that is subject to ERISA, or to the Internal Revenue Code
of 1986, as amended (any such plan or arrangement, an "ERISA Plan").
E. If the Transferee is unable to complete paragraph D above, the
Transferee must complete a Benefit Plan Affidavit in the Form attached.
Very truly yours,
By:
-----------------------------
Title:
--------------------------
Dated:
---------------------------------
K-4
<PAGE>
<PAGE>
FORM OF RESIDUAL CERTIFICATE
TAX MATTERS TRANSFER CERTIFICATE
[Complete if a Residual Certificate is being transferred.]
AFFIDAVIT PURSUANT TO SECTION
860(e) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of __________] [the United States], on behalf of
which he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" and
will not be a "disqualified organization" as of [date of transfer] (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the foregoing (other than
certain taxable instrumentalities), any cooperative organization furnishing
electric energy or providing telephone service to persons in rural areas, or any
organization (other than a farmers' cooperative) that is exempt from federal
income tax unless such organization is subject to the tax on unrelated business
income); (ii) it is not acquiring the Class RU [RL] Certificate for the account
of a disqualified organization; (iii) it consents to any amendment of the
Pooling and Servicing Agreement dated as of May 1, 1996 among Cargill Financial
Services Corporation, as Sponsor, Access Financial Receivables Corp., as Seller,
Access Financial Corp., as Servicer and The Bank of New York, as Trustee that
shall be deemed necessary by the Trustee (upon advice of counsel) to constitute
a reasonable arrangement to ensure that the Class RU [RL] Certificates will not
be owned directly or indirectly by a disqualified organization; and (iv) it will
not transfer such Class RU [RL] Certificate unless (a) it has received from the
transferee an affidavit in substantially the same form as this affidavit
containing these same four representations and (b) as of the time of the
transfer, it does not have actual knowledge that such affidavit is false.
K-5
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this ____ day of __________, ____.
[NAME OF INVESTOR]
By:
----------------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
Attest:
- -------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Investor, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ____ day of ----------, ----.
- -------------------------
NOTARY PUBLIC
COUNTY OF _______________
STATE OF ________________
My commission expires the ____ day of ____________, ----.
K-6
<PAGE>
<PAGE>
BENEFIT PLAN AFFIDAVIT
Re: Access Financial
Manufactured Housing
Contract Trust 1996-1
STATE OF )
) ss:
COUNTY OF )
Under penalties of perjury, I, the undersigned, declare that, to the
best of my knowledge and belief, the following representations are true,
correct, and complete.
1. That I am a duly authorized officer of __________ (the
"Purchaser"), whose taxpayer identification number is __________, and on behalf
of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Class ___ Certificate (the "___
Certificate") representing an interest in the Trust, for certain assets of which
one or more real estate mortgage investment conduit elections ("REMICs") are to
be made under Section 860D of the Internal Revenue Code of 1986, as amended (the
"Code").
3. The Purchaser represents that either (a) it is not (i) an
employee benefit plan (as defined in section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) subject to the provisions of
Title I of ERISA, (ii) a plan described in section 4975(e)(1) of the Internal
Revenue Code of 1986, or (iii) an entity whose underlying assets are deemed to
be assets of a plan described in (i) or (ii) above by reason of such plan's
investment in the entity (any such entity described in clauses (i) through
(iii), a "Benefit Plan Entity")1 or (b) it is an insurance company general
account and,
- --------
1 Do not include option (b) or (c) for acquisitions or transfers of a class of
Certificates which has not been placed or underwritten by an entity which has an
Underwriter Exemption (as described in Prohibited Transaction Class Exception
95-60) and do not include option (c) for acquisitions or transfers of
Certificates that (i) evidence rights and interests that are subordinated to the
rights and interests evidenced by other Certificates of the Trust, or (ii) occur
at any time during which the Certificates being acquired or transferred are not
rated in one of the top three rating categories of any rating agency that
satisfies the requirements of Prohibited Transaction Exemption 89-90 and that
(a) is rating the Certificates as of the date
(continued . . .)
K-7
<PAGE>
<PAGE>
pursuant to Section I of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60"), the acquisition and holding of the Class A Certificates and, pursuant
to Section III of PTCE 95-60, the servicing, management and operation of the
Trust are with respect to such Purchaser exempt from the "prohibited
transaction" provisions of ERISA and the Code or (c) if the Purchaser is a
Benefit Plan Entity, the following:
(i) the Purchaser is not a Benefit Plan Entity with respect to an
employee benefit plan sponsored by any member of the Restricted Group (as
defined in the Prospectus);
(ii) either (A) the person who has discretionary authority or
renders investment advice to the Purchaser with respect to the investment of
plan assets in the Class __ Certificates is not an Obligor (or an affiliate)
with respect to the Contracts (as defined in the Prospectus), or (B) the person
who has such discretionary authority or renders such investment advice is an
Obligor (or an affiliate) with respect to less than 5 percent of the Contracts;
and, immediately after the acquisition of the Class __ Certificates, no more
than 25 percent of the assets of the Purchaser are invested in certificates
representing an interest in a trust containing assets sold or serviced by the
same entity; and
(iii) the Purchaser is an "accredited investor" as defined in Rule
501(a) of Regulation D pursuant to the 1933 Act.
Capitalized terms used in and not otherwise defined herein shall
have the meaning assigned to them in the Pooling and Servicing Agreement.
- --------
1 (continued . . .)
hereof and (b) has been requested by the issuer of the Certificates to rate the
Certificates.
K-8
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf, by its duly authorized officer this _____ day of
__________, 19__.
________________________________
By:
-----------------------------
Its:
----------------------------
Personally appeared before me __________, known or proved to me to
be the same person who executed the foregoing instrument and to be a __________
of the Purchaser, and acknowledged to me that he or she executed the same as his
or her free act and deed and as the free act and deed of the Purchaser.
Subscribed and sworn before me this ____ day of __________, 19__
_____________________________________
Notary Public
My commission expires the ____ day of ____________________, 19__.
K-9
<PAGE>
<PAGE>
EXHIBIT L
REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS
To: The Bank of New York, as Custodian
101 Barclay Street, Floor 12W
New York, New York 10286
Attention: Corporate Trust Administration -- MBS
Re: Pooling and Servicing Agreement dated as of May 1,
1996 among Access Financial Corp., Access Receivables
Corp., Cargill Financial Services Corporation and The
Bank of New York, as Trustee.
Ladies and Gentlemen:
In connection with the administration of the Contracts held by you as
Trustee, we request the release, and acknowledge receipt, of the Contracts
described below, for the reason indicated.
Obligor's Name, Address & Zip Code: Each of the Obligors
indicated on the attached Schedule A
Contract Number: Each of the Contract Numbers indicated on
the attached Schedule A
Reason for Requesting Documents (check one or more):
<TABLE>
<S> <C>
_____ 1. Contract paid in full;
_____ 2. Contract repurchased; and/or
a. _____ Delinquent
b. _____ Repossession
3. Other (explain).
</TABLE>
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<PAGE>
Capitalized words and phrases used herein shall have the receptive meanings
assigned to them in the Pooling and Servicing Agreement.
ACCESS FINANCIAL CORP.
By:
-----------------------------------------------
Name:
Title:
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EXHIBIT M
AUCTION PROCEDURES
I. Pre-Auction Process
a. If by the ninetieth day following the Auction Call Date, the
Company has not exercised its rights as described in
paragraphs (b) and (c) of Section 12.03 of the Pooling and
Servicing Agreement, then a plan of complete liquidation with
respect to the Contracts will be adopted by the Trustee in
order to satisfy REMIC requirements, and the Trustee will
notify Prudential Securities Incorporated (or another
investment banking or whole-loan trading firm selected by the
Company, Prudential Securities Incorporated or such other
investment bank or trading firm, the "Advisor"), as Advisor of
the assets of the proposed auction.
b. Upon receiving notice of the proposed auction, the Advisor
will initiate its general auction procedures consisting of the
following: (i) with the assistance of the Company, prepare a
general solicitation package along with a confidentiality
agreement; (ii) prepare a list of qualified bidders, in a
commercially reasonable manner; (iii) initiate contact with
all qualified bidders; (iv) send a confidentiality agreement
to all qualified bidders; (v) upon receipt of a signed
confidentiality agreement, send solicitation packages to all
interested bidders on behalf of the Trustee; and (vi) notify
the Company of all potential bidders and anticipated
timetable.
c. The general solicitation package will include: (i) the
prospectus from the public offering of the Class A and Class
B-1 Certificates ("Prospectus"); (ii) a copy of all monthly
servicing reports or a copy of all annual servicing reports
and, upon a written request, the prior years' monthly
servicing reports; (iii) a form of a purchase and sale
agreement and servicing agreement for such sale; (iv) a
description of the minimum purchase price required to cause
the Trustee to sell the Contracts as set forth in Section
12.03(d) of the Pooling and Servicing Agreement; (v) a
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formal bidsheet; (vi) a detailed timetable; and (vii) a
preliminary data tape of the Contracts as of the most recent
Payment Date reflecting the same data attributes used to
create the original Cut-Off Date tables for the Prospectus.
d. The Advisor will send solicitation packages to all bidders no
later than the Payment Date preceding the date of the auction,
which date shall be fifteen (15) Business Days before a
Payment Date (the "Auction Date"). Bidders will be required to
submit any due diligence questions in writing to the Advisor,
for determination of their relevancy, no later than ten (10)
Business Days before the Auction Date. The Company and the
Advisor will be required to satisfy all relevant questions at
least five (5) Business Days prior to the Auction Date and
distribute the questions and answers to all bidders.
II. Auction Process
a. The Advisor will be allowed to bid in the auction, but will
not be required to do so.
b. The Company will also be allowed to bid in the auction if it
deems appropriate, but will not be required to do so.
c. On the Auction Date, all bids will be due by facsimile to such
office as shall be designated by the Trustee by 1:00 p.m. EST;
with the winning bidder to be notified by 2:00 p.m. EST. All
acceptable bids (as described in Section 8.3 of the Pooling
and Servicing Agreement) will be due on a conforming basis on
the bid sheet contained in the solicitation package.
d. If the Trustee receives fewer than two market value bids from
competitive participants in the manufactured housing market,
the Trustee may, following consultation with the Advisor and
the Company, decline to consummate the sale.
e. Upon notification to the winning bidder, a one percent (1%)
good faith deposit of the aggregate balance of the unpaid
principal balances of the Contracts as of the last day
M-2
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of the preceding Remittance Period will be required to be
wired to the Trustee upon acceptance of the bid. This deposit,
along with any interest income attributable to it, will be
credited to the purchase price, but will not be refundable.
The Trustee will establish a separate account for the
acceptance of the good faith deposit, until such time as the
account is fully funded and all monies are transferred into
the Certificate Account, such time not to exceed one (1)
Business Day before the final Payment Date.
f. The winning bidder will receive on the Auction Date a copy of
the draft purchase and sale agreement and servicing agreement.
g. The Advisor will provide to the Trustee a letter concluding
whether or not the winning bid is a fair market value bid. The
Advisor will also provide this letter if it is the winning
bidder. In the case where the Advisor (or the Company) is the
winning bidder, it will provide in its letter for market
comparables and valuations.
h. The auction will stipulate that the Servicer or a successor
Servicer be retained to service the Contracts sold pursuant to
the terms of the purchase and sale agreement and the servicing
agreement.
M-3
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<PAGE>
LOAN SALE AGREEMENT
Between
ACCESS FINANCIAL CORP.,
as Seller
and
ACCESS FINANCIAL RECEIVABLES CORP.,
as Purchaser
Dated as of May 1, 1996
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C> <C>
ARTICLE ONE DEFINITIONS................................................................. 1
Section 1.01. Definitions........................................................ 1
ARTICLE TWO PURCHASE, SALE AND CONVEYANCE OF
CONTRACTS................................................................... 1
Section 2.01. Agreement to Purchase.............................................. 1
Section 2.02. Purchase Price..................................................... 2
Section 2.03. Conveyance of Contracts; Possession
of Contract Files.................................................. 2
Section 2.04. Transfer of Contracts; Assignment
of Agreement....................................................... 2
Section 2.05. Examination of Contract Files...................................... 3
Section 2.06. Books and Records.................................................. 3
Section 2.07. Cost of Delivery and Recordation of
Documents.......................................................... 3
ARTICLE THREE REPRESENTATIONS AND WARRANTIES.............................................. 4
Section 3.01. Representations and Warranties as
to the Seller...................................................... 4
Section 3.02. Representations and Warranties
Regarding Each Contract............................................ 5
Section 3.03. Representations and Warranties
Regarding the Contracts in the
Aggregate.......................................................... 9
Section 3.04. Representations and Warranties
Regarding the Contract Files....................................... 10
Section 3.05. Repurchases of Contracts or
Substitution of Contracts for
Breach of Representations and
Warranties......................................................... 11
Section 3.06. Representations and Warranties of
the Purchaser...................................................... 13
ARTICLE FOUR
THE SELLER............................................. 14
Section 4.01. Covenants of the Seller............................................ 14
ARTICLE FIVE
MISCELLANEOUS........................................... 14
Section 5.01. Notices............................................................ 14
Section 5.02. Severability of Provisions......................................... 14
Section 5.03. Agreement of Seller................................................ 15
Section 5.04. Survival........................................................... 15
</TABLE>
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<TABLE>
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Page
<S> <C> <C>
Section 5.05. Effect of Headings and Table of
Contents........................................................... 15
Section 5.06. Successors and Assigns............................................. 15
Section 5.07. Confirmation of Intent; Grant of
Security Interest.................................................. 15
Section 5.08. Miscellaneous...................................................... 16
Section 5.09. Amendments......................................................... 16
Section 5.10. Third-Party Beneficiaries.......................................... 17
Section 5.11. GOVERNING LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY TRIAL................................. 17
Section 5.12. Execution in Counterparts.......................................... 18
</TABLE>
Exhibit A - Contract Schedule
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This Loan Sale Agreement, dated as of May 1, 1996, by and
between ACCESS FINANCIAL CORP., a Delaware corporation, its successors and
assigns (the "Seller"), and ACCESS FINANCIAL RECEIVABLES CORP., a Delaware
corporation and its successors and assigns (the "Purchaser").
W I T N E S S E T H:
WHEREAS, Exhibit A attached hereto (the "List of Contracts")
and made a part hereof lists certain installment sales contracts and installment
loan agreements for manufactured housing (the "Contracts") owned by the Seller
that the Seller desires to sell to the Purchaser and that the Purchaser desires
to purchase;
WHEREAS, it is the intention of the Seller and the Purchaser
that, immediately following the Seller's conveyance of the Contracts to
Purchaser on the Closing Date, (a) the Purchaser shall convey the Contracts to a
trust (the "Trust") pursuant to a Pooling and Servicing Agreement, dated as of
May 1, 1996 (the "Pooling and Servicing Agreement"), among the Seller, the
Purchaser, the Sponsor and The Bank of New York, as trustee (the "Trustee") and
the Sponsor shall direct such Trust to acquire the Contracts pursuant to the
Securitization Sponsorship Agreement, dated as of May 1, 1996 (the "Sponsorship
Agreement") among the Seller, the Purchaser and the Sponsor, and (b) the Trustee
shall issue certificates evidencing beneficial ownership interests in the
property of the Trust formed by the Pooling and Servicing Agreement;
NOW, THEREFORE, 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. Capitalized terms used herein that
are not otherwise defined shall have the respective meanings ascribed thereto in
the Pooling and Servicing Agreement.
ARTICLE TWO
PURCHASE, SALE AND CONVEYANCE OF CONTRACTS
Section 2.01. Agreement to Purchase. (a) Subject to the terms
and conditions of this Agreement, the Seller agrees to sell, and the Purchaser
agrees to purchase on the Closing Date, the Contracts. The List of Contracts
shall conform to the requirements of the Purchaser and to the
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<PAGE>
definition of "List of Contracts" under the Pooling and Servicing Agreement.
(b) The closing for the purchase and sale of the Contracts
shall take place at the offices of Dewey Ballantine, New York, New York, at
10:00 a.m., New York time, on May 29, 1996 or such other place and time as the
parties shall agree (such time being herein referred to as the "Closing Date").
Section 2.02. Purchase Price. On the Closing Date, as full
consideration for the Seller's sale of the Contracts to the Purchaser, the
Purchaser will deliver to the Seller an amount in cash equal to the Seller's
book value of the Contracts, as certified to the Purchaser by the Seller.
Section 2.03. Conveyance of Contracts; Possession of Contract
Files. (a) On the Closing Date, the Seller shall sell, transfer, assign, set
over and convey to the Purchaser, without recourse but subject to the terms of
this Agreement, all of its right, title and interest in and to the Contracts
(including, without limitation, the security interests created thereby),
including all principal of and interest due on or with respect to the Contracts
on or after the Cut-off Date (other than payments of principal and interest
first due on the Contracts before 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 and the Servicing Files, and (iv) all proceeds
derived from any of the foregoing (the "Conveyed Property").
(b) Upon the sale of the Conveyed Property, the ownership of
each related Contract and the contents of the related Contract File and
Servicing File shall immediately vest in the Purchaser and the ownership of all
related records and documents with respect to each Contract prepared by or which
come into the possession of the Seller shall immediately vest in the Purchaser.
The contents of any Contract File in the possession of the Seller at any time
after such sale, and any scheduled payments of principal and interest on the
Contracts due after the Cut-Off Date and received by the Seller, shall be held
in trust by the Seller for the benefit of the Purchaser as the owner thereof,
and shall be promptly delivered by the Seller to or upon the order of the
Purchaser.
(c) Pursuant to the Pooling and Servicing Agreement and as
further provided in the Sponsorship Agreement, the Purchaser shall, on the
Closing Date, assign all of its right, title and interest in and to the Conveyed
Property together with its rights hereunder to the Trust.
Section 2.04. Transfer of Contracts; Assignment of Agreement.
The Seller hereby acknowledges and agrees that the Purchaser may assign its
interest under this Agreement to the
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Trust as may be required to effect the purposes of the Pooling and Servicing
Agreement, without further notice to, or consent of, the Seller, and the Trust
shall succeed to such of the rights and obligations of the Purchaser hereunder
as shall be so assigned. The Purchaser shall, pursuant to the Pooling and
Servicing Agreement, assign all of its right, title and interest in and to the
Conveyed Property and its right to exercise the remedies created by Section 3.05
hereof for breaches of the representations, warranties, agreements and covenants
of the Seller contained in Sections 3.02, 3.03 and 3.04 hereof to the Trustee
for the benefit of the Certificateholders. The Seller agrees that, upon such
assignment to the Trustee, such representations, warranties, agreements and
covenants will run to and be for the benefit of the Trustee and the Trustee may
enforce, the repurchase obligations of the Seller set forth herein with respect
to breaches of such representations, warranties, agreements and covenants.
Section 2.05. Examination of Contract Files. Prior to the
Closing Date, the Seller shall make the Contract Files available to the
Purchaser or its designee for examination at the Seller's offices or at such
other place as the Seller shall reasonably specify. Such examination may be made
by the Purchaser or its designee at any time on or before the Closing Date. If
the Purchaser or its designee makes such examination prior to the Closing Date
and identifies any Contracts that do not conform to the requirements of the
Purchaser as described in this Agreement, such Contracts shall be deleted from
the List of Contracts and may be replaced, prior to the Closing Date, by
substitute Contracts acceptable to the Purchaser. The Purchaser may, at its
option and without notice to the Seller, purchase the Contracts without
conducting any partial or complete examination. The fact that the Purchaser or
the Trustee has conducted or has failed to conduct any partial or complete
examination of the Contract Files shall not affect the rights of the Purchaser
or the Trustee to demand repurchase or other relief as provided in this
Agreement.
Section 2.06. Books and Records. The sale of each Contract
shall be reflected on the Seller's accounting and other records, balance sheet
and other financial statements as a sale of assets by the Seller to the
Purchaser. The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Contract which shall be clearly
marked to reflect the ownership of each Contract by the Trustee for the benefit
of the Certificateholders.
Section 2.07. Cost of Delivery and Recordation of Documents.
The costs relating to the delivery and recordation of the documents specified in
this Article Two in connection with the Contracts shall be borne by the Seller.
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ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the
Seller. The Seller hereby represents and warrants to the Purchaser, as of the
Closing Date, that:
(a) Organization and Good Standing. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization and has the corporate power to own its
assets and to transact the business in which it is currently engaged. The Seller
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such qualification and in
which the failure so to qualify would have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the Seller.
(b) Authorization; Binding Obligations. The Seller has the
power and authority to make, execute, deliver and perform this Agreement and all
of the transactions contemplated under this Agreement, and to create the Trust
and cause it to make, execute, deliver and perform its obligations under this
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and to cause the Trust to
be created. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Seller enforceable in accordance with
its terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) No Consent Required. The Seller is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
(d) No Violations. The execution, delivery and performance of
this Agreement by the Seller will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Seller, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Seller is a party
or by which the Seller may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Seller
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threatened, against the Seller or any of its properties or, with respect to this
Agreement, the Certificates which, if adversely determined, would in the opinion
of the Seller have a material adverse effect on the transactions contemplated by
this Agreement.
(f) Licensing. The Seller is duly registered as a finance
company in each state in which Contracts were originated, to the extent such
registration is required by applicable law.
Section 3.02. Representations and Warranties Regarding Each
Contract. The Seller represents and warrants to the Purchaser as of the Closing
Date that, as to each Contract, immediately prior to the sale and transfer of
such Contract by the Seller to the Purchaser:
(a) List of Contracts. The information set forth in the List
of Contracts is true and correct as of its date.
(b) Payments. As of the Cut-off Date, (i) the most recent
scheduled payment was made by or on behalf of the Obligor (without any advance
from the Seller or any Person acting at the request of the Seller), or was not
delinquent for more than 59 days and (ii) the Contract was not in repossession
status.
(c) No Waivers. The terms of the Contract have not been
waived, altered or modified in any respect, except by instruments or documents
identified in the Contract File.
(d) Binding Obligation. The Contract is the legal, valid and
binding obligation of the Obligor thereunder and is enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
(e) No Defenses. The Contract is not subject to (and the
assignment thereof to the Purchaser, pursuant to this Agreement and by the
Purchaser to the Trust, pursuant to the Pooling and Servicing Agreement, will
not subject any Contract to) any right of rescission, setoff, counterclaim or
defense, including the defense of usury, and the operation of any of the terms
of the Contract or the exercise of any right thereunder will not render the
Contract unenforceable in whole or in part or subject to any right of
rescission, setoff, counterclaim or defense, including the defense of usury, and
no such right of rescission, setoff, counterclaim or defense has been asserted
with respect thereto.
(f) Insurance Coverage. The Manufactured Home securing the
Contract is covered by a Hazard Insurance Policy
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in the amount required by Section 5.09(a), (b) or (c) of the Pooling and
Servicing Agreement.
(g) Origination. The Contract was originated by a manufactured
housing dealer, through a broker or by the Seller in the regular course of its
business and, if originated by a manufactured housing dealer or through a
broker, was purchased by the Seller in the regular course of its business.
(h) Lawful Assignment. The Contract was not originated in and
is not subject to the laws of any jurisdiction whose laws would make the
transfer of the Contract pursuant to this Agreement, the Pooling and Servicing
Agreement, or pursuant to transfers of Certificates, or the ownership of the
Contract by the Trust, unlawful or render the Contract unenforceable.
(i) Compliance with Law. At the date of origination of the
Contract, all requirements of any federal and state laws, rules and regulations
applicable to the Contract, including, without limitation, usury, truth in
lending and equal credit opportunity laws, have been complied with, and the
Seller shall for at least the period of this Agreement, maintain in its
possession, available for the Purchaser's inspection, and shall deliver to the
Purchaser upon demand, evidence of compliance with all such requirements. Such
compliance is not affected by the Trust's ownership of the Contract.
(j) Contract in Force. The Contract has not been satisfied or
subordinated in whole or in part or rescinded, and the Manufactured Home
securing the Contract has not been released from the lien of the Contract in
whole or in part.
(k) Valid Security Interest. Each Contract creates a valid and
enforceable perfected first priority security interest in favor of the Seller in
the Manufactured Home covered thereby as security for payment of the Cut-off
Date Principal Balance of such Contract. The Seller has assigned all of its
right, title and interest in such Contract, including the security interest in
the Manufactured Home covered thereby, to the Purchaser. The Purchaser has and
will have a valid and perfected and enforceable first priority security interest
in such Contract and Manufactured Home.
Each Mortgage is a valid first lien in favor of the Seller on
real property securing the amount owed by the Obligor under the related Land
Secured Contract subject only to (a) the lien of current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of such
mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally in the area wherein the property
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subject to the Mortgage is located or specifically reflected in the appraisal
obtained in connection with the origination of the related Land Secured Contract
obtained by the Seller and (c) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage. The Seller has assigned all
of its right, title and interest in such Land Secured Contract and related
Mortgage, including the security interest in the Manufactured Home covered
thereby, to the Purchaser. The Purchaser has and will have a valid and perfected
and enforceable first priority security interest in such Land-Secured Contract.
(l) Capacity of Parties. The signature(s) of the obligor(s) on
the Contract are genuine and all parties to the Contract had full legal capacity
to execute the Contract.
(m) Good Title. In the case of a Contract purchased from a
manufactured housing dealer, the Seller purchased the Contract for fair value
and took possession thereof in the ordinary course of its business, without
knowledge that the Contract was subject to a security interest. The Seller has
not sold, assigned or pledged the Contract to any Person and prior to the
transfer of the Contract by the Seller to the Purchaser, the Seller had good and
marketable title thereto free and clear of any encumbrance, equity, loan,
pledge, charge, claim or security interest and was the sole owner thereof with
full right to transfer the Contract to the Purchaser.
The Purchaser has not sold, assigned or pledged any Contract
to any Person and prior to the transfer of the Contract by the Purchaser to the
Trust pursuant to the Pooling and Servicing Agreement, the Purchaser will have
good and marketable title thereto free and clear of any encumbrance, equity,
loan, pledge, charge, claim or security interest and was the sole owner thereof
with full right to transfer the Contract to the Trust.
(n) No Defaults. As of the Cut-off Date (or the date of
origination, if later), there was no default, breach, violation or event
permitting acceleration existing under the Contract and no event which, with
notice and the expiration of any grace or cure period, would constitute such a
default, breach, violation or event permitting acceleration under such Contract
(except payment delinquencies permitted by clause (b) above). The Seller has not
waived any such default, breach, violation or event permitting acceleration
except payment delinquencies permitted by clause (b) above. As of the Closing
Date, the related Manufactured Home is free of damage and in good repair. No
Manufactured Home has suffered hurricane or earthquake damage that is not
covered by a Hazard Insurance Policy.
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(o) No Liens. As of the Closing Date there are no liens or
claims which have been filed for work, labor or materials affecting the
Manufactured Home or any related Mortgaged Property securing the Contract which
are or may be liens prior to, or equal or coordinate with, the lien of the
Contract.
(p) Equal Installments. Each Contract has a fixed Contract
Rate and provides for level monthly payments which fully amortize the loan over
its term.
(q) Enforceability. Each Contract contains customary and
enforceable provisions so as to render the rights and remedies of the holder
thereof adequate for the realization against the collateral of the benefits of
the security provided thereby.
(r) One Original. There is only one original executed
Contract, which Contract has been delivered to the Trustee on or before the
Closing Date. Each Contract has an assignment to the Trustee attached to it.
(s) Primary Resident. To the best knowledge of AFC, not less
than 95% of the Contract Pool relates to Manufactured Homes which were the
related Obligors' primary residence at the time of origination.
(t) Not Real Estate. With respect to each Contract, the
related Manufactured Home is not considered or classified as part of the real
estate on which it is located under the laws of the jurisdiction in which it is
located and each Contract, except for the Land Secured Contracts, constitutes
chattel paper under the applicable Uniform Commercial Code.
(u) Notation of Security Interest. With respect to each
Contract, if the related Manufactured Home is located in a state in which
notation of a security interest on the title document is required or permitted
to perfect such security interest, the title document shows, or if a new or
replacement title document with respect to such Manufactured Home is being
applied for such title document will be issued within 180 days and will show,
the Seller 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 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 as secured party. If the related real property
secures a Land Secured Contract, such real property is subject to a mortgage
properly filed in the appropriate public recording office or such mortgage will
be properly filed in the appropriate public recording office within 180 days,
naming the Seller as mortgagee. In either case, the Purchaser has the same
rights as the secured party of record would have (if such secured
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party were still the owner of the Contract) against all Persons (including the
Seller and any trustee in bankruptcy of the Seller) claiming an interest in such
Manufactured Home.
(v) Secondary Mortgage Market Enhancement Act. The related
Manufactured Home is a "manufactured home" within the meaning of 42 United
States Code, Section 5402(6). The Offered Certificates (other than the Class B-1
Certificates) are mortgage related securities as defined in Section 3(a)(41) of
the Securities and Exchange Act of 1934, as amended.
(w) Qualified Mortgage for REMIC. Each Contract is (x) a
qualified mortgage under Section 8606(a)(3) of the Code and (y) secured by a
"manufactured housing" within the meaning of Section 25(e)(10) of the Code.
(x) Loan-to-Value Ratio. None of the Contracts had a
loan-to-value ratio at origination greater than those described for the
applicable underwriting program under "Access Financial Corp. - Underwriting
Policies -- Loan-to- Value Ratios".
(y) Refinanced Contracts. At the time of origination, the
principal balance of each Contract which was re-financed by AFC did not exceed
the then outstanding principal balance of the such Contract together with
certain insurance and refinancing costs.
(z) Land Secured Contracts. 1.81% of the Contract Pool (by
aggregate principal balance as of the Cut-off Date) consists of Contracts as to
which a mortgage on real estate is taken in lieu of a cash down payment and
4.73% of the Contract Pool (by aggregate principal balance as of the Cut-off
Date) consists of contracts as to which a mortgage on real estate was taken as
collateral against a loan advanced on the related Manufactured Home.
Section 3.03. Representations and Warranties Regarding the
Contracts in the Aggregate. The Seller represents and warrants that:
(i) Amounts. The aggregate principal amounts payable by
Obligors under the Contracts as of the Cut-off Date equal the Cut-off Date Pool
Principal Balance.
(ii) Characteristics. All Contracts have fixed Contract Rates.
As of the Cut-off Date, the Contract Rates on the Contracts ranged from 6.49% to
16.00%. The weighted average Contract Rate as of the Cut-off Date was
approximately 10.45%. As of the Cut-off Date, the Contracts had remaining terms
to maturity of at least 10 months but not more than 360 months, and original
terms to maturity of at least 12 months but not more than 360 months. As of the
Cut-off Date, the Contracts had a weighted average remaining term to maturity of
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approximately 252 months, and a weighted average original term to maturity of
approximately 254 months. The average outstanding principal balance of the
Contracts as of the Cutoff Date was $28,618 and the outstanding principal
balances of the Contracts as of the Cut-off Date ranged from $2,955 to $150,613.
The weighted average loan-to-value ratio for the Contracts at origination was
89.96%. "Value" in such calculation, (i) in the case of Manufactured Home
Contracts and Land as Additional Collateral Contracts, is equal to the stated
cash sale price of such Manufactured Home, including sales and other taxes,
plus, to the extent financed, filing and recording fees imposed by law, premiums
for related insurance and prepaid finance charges and (ii) in the case of
Land-in-Lieu Contracts and Land-Home Contracts, is equal to the sum of Value in
(i) above and the appraised value of the land securing the Contract.
The Contracts are secured by Manufactured Homes located in 38
states; approximately 23.51% of the Contracts by outstanding principal balance
as of the Cut-off Date were secured by Manufactured Homes in Texas, 22.44% in
North Carolina, 10.31% in South Carolina, 6.32% in Arizona and 5.23% in Georgia.
No other state represented more than 5% of the Contracts.
Approximately 89.01% of the Contracts by outstanding principal
balance as of the Cut-off Date are secured Manufactured Homes which were new at
the time the related Contracts were originated and approximately 10.99% of the
Contracts by outstanding principal balance as of the Cut-off Date are secured by
Manufactured Homes which were used at the time the related Contracts were
originated.
(iii) Computer Tape. The Computer Tape made available by the
Seller was complete and accurate as of its date and includes a description of
the same Contracts that are described in the List of Contracts.
(iv) Marking Records. By the Closing Date, the Seller has
caused the portions of the Electronic Ledger relating to the Contracts to be
clearly and unambiguously marked to indicate that such Contracts constitute part
of the Trust and are owned by the Trust in accordance with the terms of the
trust created hereunder.
(v) No Adverse Selection. Except for the effect of the
representations and warranties made in Sections 3.02, 3.03 and 3.04 hereof, no
adverse selection procedures have been employed in selecting the Contracts.
Section 3.04. Representations and Warranties Regarding the
Contract Files. The Seller represents and warrants that:
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(a) File Complete. Each Contract File contains the documents
required to be contained therein pursuant to the Pooling and Servicing
Agreement.
(b) Bulk Transfer Laws. The transfer, assignment and
conveyance of the Contracts, the Contract Files and the Servicing Files by the
Seller pursuant to this Agreement is not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
Section 3.05. Repurchases of Contracts or Substitution of
Contracts for Breach of Representations and Warranties. (a) The Seller shall
either (i) repurchase a Contract, at a price (the "Repurchase Price") equal to
the Scheduled Principal Balance thereof plus accrued interest at the related
Contract Rate through the end of the related Collection Period, or (ii) if the
Seller is able to satisfy the conditions of Section 3.05(b), remove a Contract
from the Trust and substitute therefor an Eligible Substitute Contract in
accordance with and subject to the limitations of Section 3.05(b), in each case
not later than one Business Day after the first Determination Date which 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 (without
regard to any knowledge qualification set forth in any representation or
warranty) of the Seller set forth in Sections 3.02, 3.03 or 3.04 of this
Agreement that materially adversely affects the Trust's interest in such
Contract, unless such breach has been cured; provided, however, that with
respect to any Contract incorrectly described on the List of Contracts with
respect to remaining principal balance, which the Seller would otherwise be
required to repurchase pursuant to this Section, the Seller may, in lieu of
repurchasing such Contract, deposit in the Certificate Account not later than
one Business Day after such Determination Date, cash in an amount sufficient to
cure such deficiency or discrepancy; and further provided, however, that with
respect to a breach of a representation or warranty relating to the Contracts in
the aggregate and not to any particular Contract, the Seller may select
Contracts to repurchase or substitute such that, had such Contracts not been
included as part of the Contract Pool and after giving effect to such
substitution, if any, there would have been no breach of such representation or
warranty. It is understood and agreed that the obligation of the Seller to
repurchase or substitute for any Contract as to which a breach of a
representation or warranty set forth in Section 3.02, 3.03 or 3.04 of this
Agreement has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Certificateholders or the Trustee;
provided, however, that the Seller shall defend and indemnify the Trustee, the
Trust and the Certificateholders against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or
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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(e), (f), (i),
(j), (v) or (w).
Notwithstanding any other provision of this Agreement to the
contrary, any amount received on or recovered with respect to repurchased
contracts or Replaced Contracts during or after the month of repurchase shall be
the property of the Seller and need not be deposited in the Certificate Account.
Notwithstanding the foregoing, the Seller shall not deposit
cash into the Certificate Account pursuant to this Section after the three-month
period beginning on the closing Date unless it shall first have obtained an
Opinion of Counsel to the effect that such deposit will not give rise to any tax
under Section 860F(a)(1) of the Code or Section 860G(d) of the Code. Any such
deposit shall not be invested.
(b) On or prior to the date that is the second anniversary of
the Closing Date, the Seller, at its election, may substitute a Contract for a
Contract that it is otherwise obligated to repurchase pursuant to Section
3.05(a) (such Contract being referred to as the "Replaced Contract") upon
satisfaction of the following conditions:
(i) The Contract to be substituted for the Replaced Contract
is an Eligible Substitute Contract and the Seller delivers an Officer's
Certificate to the Trustee certifying that such Contract is an Eligible
Substitute Contract, describing in reasonable detail how such Contract
satisfies the definition of the term "Eligible Substitute Contract" (as
to satisfaction of representations and warranties, such description
shall be that such Contract satisfies such representations and
warranties) and certifying that the Contract File for such Contract is
in the possession of the Servicer;
(ii) The Seller shall have delivered to the Trustee an Opinion
of Counsel (a) to the effect that the substitution of such Contract for
such Replaced Contract will not cause the Trust to fail to qualify as a
REMIC at any time any Certificate is outstanding under then applicable
REMIC Provisions, or cause any "prohibited transaction" that will
result in the imposition of a tax in each case under the applicable
REMIC Provisions, and (b) to the effect that no filing or other action
is necessary to perfect as against third parties the conveyance of the
substitute Contract by the Seller to the Trustee; and
(iii) If the Scheduled Principal Balance of such Replaced
Contract is greater than the Scheduled Principal Balance of such
Contract, the Seller shall have deposited
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in the Certificate Account the amount of such excess (which amount
shall be deemed a Principal Prepayment on such Contract) and shall have
included in the Officer's Certificate required by clause (i) above a
certification that such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such Contract to,
and delete such Replaced Contract from (or cause such addition and deletion to
be accomplished), the List of Contracts. Such substitution shall be effected
prior to the first Determination Date that occurs more than 90 days after the
Seller becomes aware or receives written notice from the Servicer or the Trustee
of the breach referred to in Section 3.05(a).
(c) Promptly after the repurchase referred to in Section
3.05(a) or the substitution referred to in Section 3.05(b), the Trustee shall
execute such documents as are presented to it by the Seller and are reasonably
necessary to reconvey the repurchased Contract or Replaced Contract, as the case
may be, to the Seller.
Section 3.06. Representations and Warranties of the Purchaser.
The Purchaser hereby represents, warrants and covenants to the Seller, as of the
date of execution of this Agreement and the Closing Date, that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) The Purchaser has the corporate power and authority to
purchase each Contract and to execute, deliver and perform, and to enter into
and consummate all the transactions contemplated by this Agreement;
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, and, assuming the due authorization,
execution and delivery hereof by the Seller, constitutes the legal, valid and
binding agreement of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by the
Purchaser with this Agreement or the consummation by the Purchaser of any of the
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transactions contemplated hereby, except such as have been made on or prior to
the Closing Date; and
(e) None of the execution and delivery of this Agreement, the
purchase of the Contracts from the Seller, the consummation of the other
transactions contemplated hereby, or the fulfillment of or compliance with the
terms and conditions of this Agreement, (i) conflicts or will conflict with the
charter or bylaws of the Purchaser or conflicts or will conflict with or results
or will result in a breach of, or constitutes or will constitute a default or
results or will result in an acceleration under, any term, condition or
provision of any indenture, deed of trust, contract or other agreement or other
instrument to which the Purchaser is a party or by which it is bound and which
is material to the Purchaser, or (ii) results or will result in a violation of
any law, rule, regulation, order, judgment or decree of any court or
governmental authority having jurisdiction over the Purchaser.
ARTICLE FOUR
THE SELLER
Section 4.01. Covenants of the Seller. The Seller hereby
agrees to do all acts, transactions, and things and to execute and deliver all
agreements, documents, instruments, and papers by and on behalf of the Seller as
the Purchaser or its counsel may reasonably request in order to consummate the
transfer of the Contracts to the Purchaser and the subsequent transfer thereof
to the Trustee, and the rating, issuance and sale of the Certificates.
ARTICLE FIVE
MISCELLANEOUS
Section 5.01. Notices. All demands, notices and
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered to or mailed by registered mail, postage
prepaid, or transmitted by telex or telegraph and confirmed by a similar mailed
writing, addressed to the Seller at Access Financial Corp., 1100 Abernathy Road,
Suite 1200, Atlanta, Georgia 30328, Attention: President, or to such other
address as the Seller may designate in writing to the Purchaser and if to the
Purchaser, addressed to the Purchaser at Access Financial Receivables Corp.,
1100 Abernathy Road, Suite 1205, Atlanta, Georgia 30328, Attention: President,
or to such other address as the Purchaser may designate in writing to the
Seller.
Section 5.02. Severability of Provisions. Any part,
provision, representation, warranty or covenant of this Agreement which is
prohibited or which is held to be void or
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unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Contract shall not invalidate or render unenforceable
such provision in any other jurisdiction. To the extent permitted by applicable
law, the parties hereto waive any provision of law which prohibits or renders
void or unenforceable any provision hereof.
Section 5.03. Agreement of Seller. The Seller agrees to
execute and deliver such instruments and take such actions as the Purchaser may,
from time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement.
Section 5.04. Survival. The parties to this Agreement agree
that the representations, warranties and agreements made by each of them herein
and in any certificate or other instrument delivered pursuant hereto shall be
deemed to be relied upon by the other party hereto, notwithstanding any
investigation heretofore or hereafter made by such other party or on such other
party's behalf, and that the representations, warranties and agreements made by
the parties hereto in this Agreement or in any such certificate or other
instrument shall survive the delivery of and payment for the Contracts.
Section 5.05. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 5.06. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Except as expressly permitted by
the terms hereof, this Agreement may not be assigned, pledged or hypothecated by
any party hereto to a third Person without the written consent of the other
party to this Agreement; provided, however, that the Purchaser may assign its
rights hereunder without the consent of the Seller.
Section 5.07. Confirmation of Intent; Grant of Security
Interest. It is the express intent of the parties hereto that the conveyance of
the Contracts by the Seller to the Purchaser as contemplated by this Agreement
be, and be treated for all purposes as, a sale by the Seller to the
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Purchaser of the Contracts. It is, further, not the intention of the parties
that such conveyance be deemed a pledge of the Contracts by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Contracts are held to
continue to be property of the Seller then (a) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
Uniform Commercial Code; (b) the transfer of the Contracts provided for herein
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title and interest in and to the
Contracts and all amounts payable on the Contracts in accordance with the terms
thereof and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (c) the
possession by the Purchaser of Contracts and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Uniform Commercial Code; and
(d) notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to any provision hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Contracts, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement.
Section 5.08. Miscellaneous. This Agreement supersedes all
prior agreements and understandings relating to the subject matter hereof.
Section 5.09. Amendments. (a) This Agreement may be amended
from time to time by the Seller and the Purchaser by written agreement without
notice to or consent of the Certificateholders to cure any ambiguity, to correct
or supplement any provisions herein, to comply with any changes in the Code, or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, at the expense of the party requesting the change, delivered
to the Trustee, adversely affect in any material respect the interests of any
Certificateholder; provided, further, that no such amendment shall reduce in any
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manner the amount of, or delay the timing of, payments received on Contracts
which are required to be distributed on any Certificate without the consent of
the Holder of such Certificate, or change the rights or obligations of any other
party hereto without the consent of such party.
(b) 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.
Section 5.10. Third-Party Beneficiaries. The parties agree
that the Trustee is an intended third-party beneficiary of this Agreement to the
extent necessary to enforce the rights and to obtain the benefit of the remedies
of the Purchaser under this Agreement which are assigned to the Trustee for the
benefit of the Certificateholders pursuant to the Pooling and Servicing
Agreement and to the extent necessary to obtain the benefit of the enforcement
of the obligations and covenants of the Seller under Sections 3.05 and 4.01 of
this Agreement.
Section 5.11. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
OF THE STATE OF NEW YORK.
(b) THE PURCHASER AND THE SELLER EACH HEREBY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND
EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS
SET FORTH IN SECTION 5.01 OF THIS AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S.
MAILS, POSTAGE PREPAID. THE PURCHASER AND THE SELLER EACH HEREBY WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE PURCHASER AND THE SELLER TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S RIGHT TO BRING ANY ACTION
OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE PURCHASER AND THE SELLER EACH HEREBY WAIVES ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN
CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
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Section 5.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed by their respective officers thereunto duly authorized as of the
date first above written.
ACCESS FINANCIAL CORP.
By: /s/ Leslie Zejdlik Foster
-------------------------------
Name: Leslie Zejdlik Foster
Title: President
ACCESS FINANCIAL RECEIVABLES CORP.
By: /s/ Leslie Zejdlik Foster
-------------------------------
Name: Leslie Zejdlik Foster
Title: President
[Loan Sale Agreement]
<PAGE>
<PAGE>
SECURITIZATION SPONSORSHIP AGREEMENT
among
ACCESS FINANCIAL CORP.,
ACCESS FINANCIAL RECEIVABLES CORP.
and
CARGILL FINANCIAL SERVICES CORPORATION
Dated as of May 1, 1996
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE ONE DEFINITIONS................................................................. 2
Section 1.01. Definitions........................................................ 2
ARTICLE TWO AGREEMENT TO CREATE TRUST; AGREEMENT TO
CONVEY CONTRACTS; ASSIGNMENT................................................ 2
Section 2.01. Agreement to Create Trust.......................................... 2
Section 2.02. Agreement to Convey Contracts...................................... 2
Section 2.03. Possession of Files................................................ 3
Section 2.04. Books and Records.................................................. 3
Section 2.05. Cost of Delivery and Recordation of
Documents.......................................................... 3
Section 2.06. Assignment of Agreement............................................ 3
ARTICLE THREE REPRESENTATIONS AND WARRANTIES.............................................. 3
Section 3.01. Representations and Warranties of
the Parties........................................................ 4
ARTICLE FOUR CERTAIN COVENANTS OF AFC.................................................... 5
Section 4.01. Further Assurances................................................. 5
Section 4.02. Indemnification.................................................... 5
ARTICLE FIVE MISCELLANEOUS............................................................... 5
Section 5.01. Notices............................................................ 5
Section 5.02. Severability of Provisions......................................... 6
Section 5.03. Survival........................................................... 6
Section 5.04. Effect of Headings and Table of
Contents........................................................... 6
Section 5.05. Successors and Assigns............................................. 7
Section 5.06. Miscellaneous...................................................... 7
Section 5.07. Amendments......................................................... 7
Section 5.08. Third-Party Beneficiaries.......................................... 7
Section 5.10. GOVERNING LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY TRIAL................................. 8
Section 5.11. Execution in Counterparts.......................................... 8
</TABLE>
i
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This Securitization Sponsorship Agreement, dated as of May 1,
1996, by and among ACCESS FINANCIAL CORP., a Delaware corporation, its
successors and assigns ("AFC"), ACCESS FINANCIAL RECEIVABLES CORP., a Delaware
corporation ("Receivables"), and CARGILL FINANCIAL SERVICES CORPORATION, a
Delaware corporation and its successors and assigns (the "Sponsor").
W I T N E S S E T H:
WHEREAS, the List of Contracts lists certain installment sales
contracts and installment loan agreements for manufactured housing (the
"Contracts") owned by AFC that AFC desires to include in a securitization
transaction and, to effect such transaction, AFC intends to sell such Contracts
to Receivables pursuant to a Loan Sale Agreement, dated as of May 1, 1996
between AFC and Receivables;
WHEREAS, the Sponsor has previously filed a Registration
Statement with the Securities and Exchange Commission which allows for the
registration of certain types of asset-backed securities issued by the Sponsor
thereunder;
WHEREAS, the Sponsor is willing to create a trust (the
"Trust") pursuant to a Pooling and Servicing Agreement, dated as of May 1, 1996
(the "Pooling and Servicing Agreement") among Receivables, as seller, AFC as
servicer, the Sponsor and The Bank of New York, a New York state banking
corporation, as trustee (the "Trustee");
WHEREAS, the Sponsor is willing to direct the Trust to acquire
the Contracts from Receivables and to issue certain asset-backed securities
representing interests in the Trust (the "Certificates");
WHEREAS, the Sponsor is willing to act as the "Issuer" of the
Certificates in its capacity as the "manager" of the Trust, as described and
provided in Section 2(4) of the Securities Act of 1933, as amended, and to
assume the responsibilities, obligations and liabilities appurtenant to its
status as an issuer of securities; and
WHEREAS, AFC and Receivables are willing to act as the
"sponsors" of each "real estate mortgage investment conduit" ("REMIC") to be
created by the Trust within the meaning of Section 1.860F-1 of the regulations
issued under the Code, and to assume the responsibilities, obligations and
liabilities appurtenant to its status as the sponsors of such REMICS;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto agree as follows:
<PAGE>
<PAGE>
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that
are not otherwise defined shall have the respective meanings ascribed thereto in
the Pooling and Servicing Agreement.
ARTICLE TWO
AGREEMENT TO CREATE TRUST; AGREEMENT TO CONVEY CONTRACTS; ASSIGNMENT
Section 2.01. Agreement to Create Trust. (a) Subject to the
terms and conditions of this Agreement, the Sponsor agrees to create the Trust
under the Pooling and Servicing Agreement and to direct the Trust to acquire the
Contracts.
Upon the Trust's acquisition of the Contracts, the Sponsor
will further direct the Trust to issue the Certificates. The transactions
described in this Section 2.01(a) are the "Securitization".
(b) The closing for the Securitization shall take place at the
offices of Dewey Ballantine, New York, New York, at 10:00 a.m., New York time,
on May 29, 1996 or such other place and time as the parties shall agree (such
date of closing being herein referred to as the "Closing Date").
Section 2.02. Agreement to Convey Contracts. (a) On the
Closing Date, AFC shall sell, transfer, assign, set over and convey to
Receivables, without recourse but subject to the terms of the Loan Sale
Agreement, (i) all of its right, title and interest in and to the Contracts
(including, without limitation, the security interests created thereby),
including all principal of and interest due on or with respect to the Contracts
on or after the Cut-off Date (other than payments of principal and interest
first due on the Contracts before 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 and the Servicing Files and (iv) all proceeds
derived from any of the foregoing (collectively, the "Contract Rights").
(b) On the Closing Date and immediately following the sale
described in Section 2.02(a), Receivables shall sell, transfer, assign, set over
and convey to the Trust, without recourse but subject to the terms of the
Pooling and Servicing Agreement, all of its right, title and interest in and to
(i)
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the Contract Rights and (ii) all rights of Receivables under the Loan Sale
Agreement.
Section 2.03. Possession of Files. Upon the sale of the
Contract Rights to the Trust, the ownership of each related Contract and the
contents of the related Contract File shall immediately vest in the Trust. The
contents of any Contract File in the possession of AFC or Receivables at any
time after such sale, and any scheduled payments of principal and interest on
the Contracts due after the Cut-Off Date and received by AFC or Receivables,
shall be held in trust by AFC or Receivables for the benefit of the Trust as the
owner thereof, and shall be promptly delivered by AFC or Receivables to or upon
the order of the Sponsor on behalf of the Trust.
Section 2.04. Books and Records. (a) The conveyance of each
Contract by AFC to Receivables shall be reflected on AFC's accounting and other
records, balance sheet and other financial statements as a sale of assets by AFC
to Receivables. AFC shall be responsible for maintaining, and shall maintain, a
complete set of books and records for each Contract which shall be clearly
marked to reflect the ownership of each Contract by the Trust for the benefit of
the Certificateholders.
(b) The conveyance of each Contract by Receivables to the
Trust shall be reflected on Receivables' accounting and other records, balance
sheet and other financial statements as a sale of assets by Receivables to the
Trust. Receivables shall be responsible for maintaining, and shall maintain, a
complete set of books and records for each Contract which shall be clearly
marked to reflect the ownership of each Contract by the Trust for the benefit of
the Certificateholders.
Section 2.05. Cost of Delivery and Recordation of Documents.
The costs relating to the delivery and recordation of the documents specified in
this Article Two in connection with the Contracts shall be borne by AFC or
Receivables.
Section 2.06. Assignment of Agreement. AFC and Receivables
hereby acknowledge and agree that the Sponsor intends to assign its interest
(other than the Unassigned Rights (as defined in Section 4.02 hereof)) under
this Agreement to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement, without further notice to, or consent of, AFC
or Receivables, and the Trustee shall succeed to such of the rights and
obligations of the Sponsor hereunder as shall be so assigned.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
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Section 3.01. Representations and Warranties of the Parties.
Each of AFC, Receivables and the Sponsor hereby represents, warrants and
covenants to each other party hereto as of the date of execution of this
Agreement and the Closing Date that:
(a) It is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and has
the corporate power to own its assets and to transact the business in which it
is currently engaged. It 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 its business, properties, assets, or condition (financial or
other).
(b) It has the power and authority to make, execute, deliver
and perform this Agreement and all of the transactions contemplated under this
Agreement, and this Agreement has been duly and validly authorized, executed and
delivered by it. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of it enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
or other Person is required for the execution, delivery and performance of or
compliance by it with this Agreement or the consummation by it of any of the
transactions contemplated hereby, except such as have been made on or prior to
the Closing Date.
(d) None of the execution, delivery and performance of this
Agreement, and the consummation of the other transactions contemplated hereby,
or the fulfillment of or compliance with the terms and conditions of this
Agreement, (i) conflicts or will conflict with its charter or bylaws or
conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under, any term, condition or provision of any indenture, deed of
trust, contract or other agreement or other instrument to which it is a party or
by which it is bound and which is material to it, or (ii) results or will result
in a violation of any law, rule, regulation, order, judgment or decree of any
court or governmental authority having jurisdiction over it.
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(e) No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending, or to its
knowledge, threatened against it or any of its properties or with respect to
this Agreement, the Certificates which, if adversely determined, would in its
opinion have a material adverse effect on the transactions contemplated by this
Agreement.
ARTICLE FOUR
CERTAIN COVENANTS OF AFC
Section 4.01. Further Assurances. AFC and Receivables hereby
agree to do all acts, transactions, and things and to execute and deliver all
agreements, documents, instruments, and papers by and on behalf of AFC and
Receivables as the Sponsor or its counsel may reasonably request in order to
consummate the transfer of the Contracts from AFC to Receivables and from
Receivables to the Trust and the rating, issuance and sale of the Certificates.
Section 4.02. Indemnification. (a) AFC agrees to indemnify the
Sponsor, Receivables, their respective "controlling persons" within the meaning
of the Federal securities laws and their respective officers, directors and
employees from and against any losses, claims, actions or liabilities suffered
or incurred by the Sponsor or Receivables, as the case may be, in connection
with the Securitization, except to the extent any such losses, claims, actions
or liabilities relate to the Sponsor Offering Materials as defined in the
Underwriting Agreement, dated as of May 22, 1996 (the "Underwriting Agreement")
among AFC, Receivables, the Sponsor, Prudential Securities Incorporated and J.P.
Morgan Securities Inc. The rights of the Sponsor under this Section 4.02(a) are
the "Unassigned Rights" which are not being assigned to the Trustee.
(b) The Sponsor agrees to indemnify each of AFC, Receivables,
and Access Financial Holdings Corp. and their respective officers, directors and
employees from and against any losses, claims, actions or liabilities suffered
or incurred by AFC or Receivables relating to the Sponsor Offering Materials as
defined in the Underwriting Agreement.
ARTICLE FIVE
MISCELLANEOUS
Section 5.01. Notices. All demands, notices and communications
hereunder shall be given as follows, until any superseding instructions are
given to all other persons listed below:
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AFC: Access Financial Corp.
1100 Abernathy Road, Suite 1200
Atlanta, Georgia 30328
Attention: Operations
Tel: (770) 481-6061
Fax: (770) 828-0455
Receivables: Access Financial Receivables Corp.
1100 Abernathy Road, Suite 1205
Atlanta, Georgia 30328
Tel:
Fax:
The Sponsor: Cargill Financial Services
Corporation
6000 Clearwater Drive
Minnetonka, Minnesota 55343-9497
Attention: Corporate Capital Group
Tel: (612) 984-3058
Fax: (612) 984-3910
Section 5.02. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement which is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Contract shall not invalidate or render unenforceable
such provision in any other jurisdiction. To the extent permitted by applicable
law, the parties hereto waive any provision of law which prohibits or renders
void or unenforceable any provision hereof.
Section 5.03. Survival. The parties to this Agreement agree
that the representations, warranties and agreements made by each of them herein
and in any certificate or other instrument delivered pursuant hereto shall be
deemed to be relied upon by the other party hereto, notwithstanding any
investigation heretofore or hereafter made by such other party or on such other
party's behalf, and that the representations, warranties and agreements made by
the parties hereto in this Agreement or in any such certificate or other
instrument shall survive the delivery of and payment for the Contracts.
Section 5.04. Effect of Headings and Table of Contents. The
Article and Section headings herein and the
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Table of Contents are for convenience only and shall not affect the construction
hereof.
Section 5.05. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Except as expressly permitted by
the terms hereof, this Agreement may not be assigned, pledged or hypothecated by
any party hereto to a third Person without the written consent of the other
parties to this Agreement; provided, however, that the Sponsor may assign its
rights hereunder without the consent of AFC or Receivables.
Section 5.06. Miscellaneous. This Agreement super- sedes all
prior agreements and understandings relating to the subject matter hereof.
Section 5.07. Amendments. (a) This Agreement may be amended
from time to time by AFC, Receivables and the Sponsor by written agreement
without notice to, or consent of, the Certificateholders, to cure any ambiguity,
to correct or supplement any provisions herein, to comply with any changes in
the Code, or to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with the provisions
of this Agreement; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, at the expense of the party requesting the change,
delivered to the Trustee, adversely affect in any material respect the interests
of any Owner; provided, further, that no such amendment shall reduce in any
manner the amount of, or delay the timing of, payments received on Contracts
which are required to be distributed on any Certificate without the consent of
the Owner of such Certificate, or change the rights or obligations of any other
party hereto without the consent of such party.
(b) 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.
(c) The Certificateholders if they so request, shall be
provided with copies of any amendments to this Agreement, together with copies
of any opinions of counsel or other documents or instruments executed in
connection therewith.
Section 5.08. Third-Party Beneficiaries. The parties agree
that the Trustee is an intended third-party beneficiary of this Agreement to the
extent necessary to enforce the rights and to obtain the benefit of the remedies
of the Sponsor under this Agreement which are assigned to the
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Trustee for the benefit of the Certificateholders pursuant to the Pooling and
Servicing Agreement.
Section 5.10. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
OF THE STATE OF NEW YORK.
(b) THE SPONSOR, RECEIVABLES AND AFC EACH HEREBY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK
CITY, AND EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO
THE ADDRESS SET FORTH IN SECTION 5.01 OF THIS AGREEMENT AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN
DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE SPONSOR, RECEIVABLES AND AFC
EACH HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE SPONSOR,
RECEIVABLES AND AFC TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR AFFECT ANY PARTY'S RIGHT TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF
ANY OTHER JURISDICTION.
(c) THE SPONSOR, RECEIVABLES AND AFC EACH HEREBY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN
CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 5.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
[Signatures Commence on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed by their respective officers thereunto duly authorized as of the
date first above written.
ACCESS FINANCIAL CORP.
By: /s/ Leslie Zejdlik Foster
-----------------------------
Name: Leslie Zejdlik Foster
Title: President
ACCESS FINANCIAL RECEIVABLES CORP.
By: /s/ Leslie Zejdlik Foster
-----------------------------
Name: Leslie Zejdlik Foster
Title: President
CARGILL FINANCIAL SERVICES
CORPORATION
By: /s/ Kenneth M. Duncan
-----------------------------
Name: Kenneth M. Duncan
Title: Senior Vice President
[Securitization Sponsorship Agreement]
