EXHIBIT 99.3
CLASS A NOTE PURCHASE AGREEMENT
Dated as of February 9, 2001
among
OMI NOTE TRUST 2001-A
as Issuer,
OAKWOOD ACCEPTANCE CORPORATION
as Seller and Servicer,
OAK LEAF HOLDINGS, LLC
as Depositor,
GINKGO CORPORATION
as Transferor,
THE PURCHASERS PARTIES HERETO,
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Agent
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Relating to
OMI Note Trust 2001-A
Class A Asset Backed Notes, Series 2001-A
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LIST OF EXHIBITS
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EXHIBIT A Form of Investment Letter
EXHIBIT B Form of Joinder Supplement
EXHIBIT C Form of Transfer Supplement
EXHIBIT D Form of CSFBi Warrant
EXHIBIT E Form of CSFBi Warrant Registration Rights Agreement
EXHIBIT F Form of Agreement re Bankruptcy
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CLASS A NOTE PURCHASE AGREEMENT, dated as of February 9, 2001,
by and among OMI NOTE TRUST 2001-A, a Delaware business trust (the "Issuer"),
OAKWOOD ACCEPTANCE CORPORATION, a North Carolina corporation ("OAC"), OAK LEAF
HOLDINGS, LLC, a Delaware limited liability company (the "Depositor"), GINKGO
CORPORATION, a Delaware corporation (the "Transferor"), the PURCHASERS from time
to time parties hereto (collectively, the "Purchasers") and CREDIT SUISSE FIRST
BOSTON, a Swiss banking corporation acting through its New York Branch, as agent
for the Purchasers (together with its successors in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Issuer, and The Chase Manhattan Bank, a New York
banking corporation, as Indenture Trustee (together with its successors in such
capacity, the "Indenture Trustee"), are parties to a certain Indenture, dated as
of February 9, 2001 (as the same may from time to time be amended or otherwise
modified, the "Indenture"), pursuant to which the Issuer has issued its Class A
Asset Backed Notes, Series 2001-A (the "Notes"); and
WHEREAS, the Purchasers are willing to have the Agent acquire
the Notes on their behalf on the Closing Date and from time to time thereafter
to make Borrowings (as defined in the Indenture) available thereunder on the
terms and conditions provided for herein;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions. All capitalized terms used herein as defined terms and
not defined herein shall have the meanings given to them in the Indenture or the
Sale and Servicing Agreement, as applicable. If a term used herein is defined in
both the Indenture and the Sale and Servicing Agreement, it shall have the
meaning set forth in the Indenture. Additionally, the terms defined in the
preamble to this Agreement shall have the meanings set forth therein and the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Affected Party" shall mean, with respect to any Structured
Purchaser, any Support Party of such Structured Purchaser.
"Agent" has the meaning specified in the preamble to this
Agreement.
"Agreement" shall mean this Class A Note Purchase Agreement,
as amended, supplemented or otherwise modified from time to time.
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"Agreement re Bankruptcy" has the meaning specified in
subsection 3.1(k) of the Agreement.
"Applicable Treasury Yield" shall mean, as of any date, the
per annum rate of interest for "on-the-run" United States Treasury obligations
having the maturity which corresponds to the weighted average life of the
Receivables, as selected by the Agent and the underwriters or other Persons
submitting bids as to spread-to-treasuries in determining the Term Out Rate.
"Assignee" and "Assignment" have the respective meanings
specified in subsection 8.1(e) of this Agreement.
"Available Commitment" shall mean, on any day for a Committed
Purchaser, such Purchaser's Commitment in effect on such day minus the sum of
(i) such Purchaser's Percentage Interest of the Class A Outstanding Amount of
the Notes on such day plus (ii) if such Purchaser is a Liquidity Provider for a
Noncommitted Purchaser, such Purchaser's Liquidity Percentage multiplied by such
Noncommitted Purchaser's Percentage Interest of the Class A Outstanding Amount
of the Notes on such day.
"Base Rate" means, for any day, a rate per annum (in no event
higher than the maximum rate permitted by applicable law) equal to the higher of
(a) the rate of interest publicly announced or, if not publicly announced,
quoted internally from time to time by the Agent at its principal office in New
York, New York as its prime commercial lending rate in effect in the United
States of America, such prime rate not intended to be the lowest rate of
interest charged by the Agent to any class of debtors and (b) the rate quoted to
the Agent at approximately 11:00 A.M., New York City time, by dealers in the New
York Federal Funds Market for the overnight offering of dollars to the Agent for
deposit, from time to time in effect, plus 0.50%, calculated based on the actual
days elapsed in a year of 365 or 366 days, as applicable.
"Closing Date" shall mean February 20, 2001.
"Commitment" shall mean, for any Committed Purchaser, the
maximum amount of such Committed Purchaser's commitment to make advances to the
Issuer, as set forth in the Joinder Supplement or the Transfer Supplement by
which such Committed Purchaser became a party to this Agreement or assumed the
Commitment (or a portion thereof) of another Committed Purchaser, as such amount
may be adjusted from time to time pursuant to Transfer Supplement(s) executed by
such Committed Purchaser and its Assignee(s) and delivered pursuant to Section
8.1 of this Agreement or pursuant to Section 2.2 of this Agreement. In the event
that a Committed Purchaser maintains a portion of its Commitment hereunder in
its capacity as a Liquidity Provider for one or more Noncommitted Purchasers,
such Committed Purchaser shall be deemed to hold separate Commitments hereunder
(i) in each such capacity and (ii) if applicable, to the extent its Commitment
does not relate to any Noncommitted Purchaser.
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"Commitment Expiration Date" shall mean February 15, 2004.
"Commitment Percentage" shall mean, for a Committed Purchaser,
such Purchaser's Commitment as a percentage of the aggregate Commitments of all
Committed Purchasers.
"Committed Purchaser" shall mean any Purchaser which has a
Commitment, as set forth in its respective Joinder Supplement, and any Assignee
of such Purchaser to the extent of the portion of such Commitment assumed by
such Assignee pursuant to its respective Transfer Supplement.
"Committed Purchaser Percentage" shall mean, with respect to a
Committed Purchaser, its Commitment (exclusive of any portion thereof held by it
in its capacity as a Liquidity Provider), as a percentage of the aggregate
Commitments of all Committed Purchasers.
"CSFBi Warrant Registration Rights Agreement" has the meaning
specified in subsection 3.1(j) of the Agreement.
"Default" shall mean any of the events specified in the
definition of Event of Default, whether or not any requirement for the giving of
notice, the lapse of time, or both has been satisfied.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Event of Default" shall mean any of the following events:
(a) An "Event of Default" shall occur under, and as defined
in, the Indenture; or
(b) Any representation or warranty made or deemed made by the
Issuer, the Depositor, the Transferor, the Seller or the Servicer herein or in
any other Related Document or which is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection
with this Agreement or any such other Related Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed made
(except where such representation or warranty relates to any earlier date, in
which case such representation and warranty shall have been true and correct in
all material respects as of such earlier date) and the incorrectness of such
representation or warranty has a material adverse effect on the interest of the
Agent or any Purchaser, provided that the incorrectness of any representation or
warranty under the Sale and Servicing Agreement which causes the Seller to be
required to cure such incorrectness or repurchase a Receivable or Receivables
shall not constitute an Event of Default unless the Seller shall have failed to
cure such incorrectness or repurchase
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such Receivable or Receivables on or before the end of any grace period
applicable pursuant to Section 2.1, 2.2 or 2.4 of the Sale and Servicing
Agreement; or
(c) The Issuer, the Depositor, the Transferor, the Seller or
the Servicer shall default in any material respect in the observance or
performance of any other agreement contained in this Agreement or any other
Related Document (other than as provided in paragraphs (a) and (b) of this
Section), and such default shall continue unremedied for a period of 10 Business
Days after the Issuer, the Depositor, the Transferor, the Seller or the Servicer
becomes aware of or is notified of such default; or
(d) (i) The Indenture shall cease, for any reason, to be in
full force and effect, or the Issuer shall so assert or (ii) the Lien created by
the Indenture shall cease to be enforceable and of the same effect and priority
purported to be created thereby.
"Excluded Taxes" has the meaning assigned to such term in
subsection 6.3(a).
"Facility Termination Date" shall mean, the first to occur of
(i) the Commitment Expiration Date (ii) the date of any termination by the
Issuer of the Commitments pursuant to Section 2.2, and (iii) the date the
Commitments are terminated pursuant to Section 2.5 of this Agreement.
"Fee Letter" shall mean that certain letter agreement,
designated therein as the Fee Letter and dated as of the date hereof, among the
Agent, the Issuer and the Seller, as such letter agreement may be amended or
otherwise modified from time to time.
"Fees" shall mean the fees payable to the Agent or the
Purchasers in the amounts and on the dates set forth in the Fee Letter.
"Fixed Rate" shall mean, as of any date, a per annum rate
equal to the greater of (i) the weighted average Receivable Rate of the Eligible
Receivables as of such date less 1.5% and (ii) the Term Out Rate.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indemnitee" has the meaning specified in subsection 2.4(a) of
this Agreement.
"Indemnitor" has the meaning specified in subsection 2.4(a) of
this Agreement.
"Indenture" has the meaning specified in the recitals to this
Agreement.
"Indenture Trustee" has the meaning specified in the recitals
to this Agreement.
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"Interest Period" means, with respect to any Payment Date, (a)
with respect to the principal amount of the Notes outstanding on the first day
of the related Accrual Period, the related Accrual Period and (b) with respect
to any Borrowing during such Accrual Period, the period from and including the
related Borrowing Date through and including the last day of such Accrual
Period.
"Interpretation" as used in Sections 6.1 and 6.2 hereof with
respect to any law or regulation means the interpretation or application of such
law or regulation by any governmental authority (including, without limitation,
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government), central bank,
accounting standards board or any comparable entity.
"Investing Office" shall mean initially, the office of any
Purchaser (if any) designated as such, in the case of any initial Purchaser, in
its Joinder Supplement and, in the case of any Assignee, in the related Transfer
Supplement, and thereafter, such other office of such Purchaser or such Assignee
as may be designated in writing to the Agent, the Issuer, the Servicer and the
Indenture Trustee by such Purchaser or Assignee.
"Investment Letter" has the meaning specified in subsection
8.1(a) of this Agreement.
"Joinder Supplement" has the meaning specified in subsection
2.2(d) of this Agreement.
"LIBO Business Day" means any day (a) other than (i) a
Saturday, Sunday or (ii) other day on which banks are required or authorized to
close in London or New York City and (b) on which dealings in foreign currency
and exchange are carried on in the London interbank market
"LIBO Rate" means, for any Interest Period, a rate per annum
equal to the London interbank offered rate for one month United States dollar
deposits (rounded upward, if necessary, to the nearest whole multiple of 1/16 of
one percent), that appears on the display page of the Bridge Telerate Capital
Markets Report currently designated as Telerate Page 3750 (or such other page as
may replace that page on that service for the purpose of displaying comparable
rates or prices), as of 11:00 a.m., London time, on the second LIBO Business Day
preceding the commencement of such Interest Period (or portion thereof). ). In
the event no such rate appears, the LIBO Rate shall be, with respect to any
Interest Period, the per annum rate of interest at which one month Dollar
deposits in immediately available funds are offered to the Agent by prime banks
in the interbank eurodollar market at or about 10:00 a.m., London time, on the
second LIBO Business Day before (and for value on) the first day of such
Interest Period (or portion thereof) and in an amount of not less than
$1,000,000. The establishment of the LIBO Rate hereunder shall (in the absence
of manifest error) be conclusive.
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"LIBO Rate Disruption Event" means, for any Interest Period
and any Purchaser, any of the following: (a) a determination by such Purchaser
that it would be contrary to law applicable to such Purchaser or to the
directive of any central bank or other governmental authority having
jurisdiction over such Purchaser to obtain United States dollars in the London
interbank market to fund its investment in its interest in the Notes for such
Interest Period or (b) the inability of such Purchaser by reason of
circumstances affecting the London interbank market generally, to obtain United
States dollars in such market to fund its investment in its interest in the
Notes for such Interest Period.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement of any
kind or nature whatsoever (including, without limitation, any conditional sale
or other title retention agreement and any capital lease having substantially
the same economic effect as any of the foregoing).
"Liquidity Percentage" shall mean, for a Committed Purchaser
which is a Liquidity Provider for a Noncommitted Purchaser, such Purchaser's
Commitment held in such capacity as a percentage of the aggregate Commitments of
all Liquidity Providers (held in their capacities as such) for such Noncommitted
Purchaser.
"Liquidity Provider" shall mean, with respect to a
Noncommitted Purchaser, each Committed Purchaser identified as a Liquidity
Provider for such Noncommitted Purchaser in the Joinder Supplement or Transfer
Supplement pursuant to which such Noncommitted Purchaser became a party hereto,
and any Assignee of such Committed Purchaser to the extent such Assignee has
assumed, pursuant to a Transfer Supplement, the Commitment of such Committed
Purchaser held in its capacity as a Liquidity Provider. In the event that a
Liquidity Provider acquires a portion of the Class A Outstanding Amount of Notes
from its Noncommitted Purchaser by Assignment, a corresponding portion of its
Commitment shall thereupon cease to be held by it in its capacity as a Liquidity
Provider for such Noncommitted Purchaser (but shall otherwise remain in effect,
subject to the terms and conditions of this Agreement, as a portion of the
Commitment of such Committed Purchaser).
"Noncommitted Purchaser" shall mean a Purchaser which is not a
Committed Purchaser.
"Noncommitted Purchaser Percentage" shall mean for each
Noncommitted Purchaser, the aggregate Commitments of its Liquidity Providers
from time to time as a percentage of the aggregate Commitments of all Committed
Purchasers.
"Notes" has the meaning specified in the recitals to this
Agreement.
"Note Interest Rate" shall mean, for any Interest Period and
any portion of the outstanding principal amount of the Notes, (a) except when an
Event of Default shall have
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occurred and be continuing, a rate per annum equal to the LIBO Rate for such
Interest Period plus 0.375%; provided, however, that
(i) if any Purchaser shall notify the Agent that a LIBO Rate
Disruption Event has occurred and is continuing, then the Note Interest Rate for
such Interest Period shall be a rate per annum equal to the Base Rate in effect
from time to time during such Interest Period; and
(ii) without limiting the foregoing, if with respect to such
Interest Period such Purchaser shall have notified the Agent that the rate at
which deposits of United States dollars are being offered to such Purchaser in
the London interbank market does not accurately reflect the cost to such
Purchaser of funding its interest in the Notes for such Interest Period, then
the Note Interest Rate for such Interest Period shall be a rate per annum equal
to the Base Rate in effect from time to time during such Interest Period;
and (b) when an Event of Default shall have occurred and be continuing, the Base
Rate plus 1%, provided that upon the occurrence of an Event of Default, the
Purchasers may, by written notice sent to the Issuer, the Seller, the Servicer
and the Depositor not less than 30 nor more than 90 days after such Event of
Default shall have commenced, convert the Note Interest Rate to a fixed interest
rate equal to the Fixed Rate.
"Note Monthly Interest" means, with respect to any Accrual
Period, the sum of (a) the amount of interest accrued on the outstanding amount
of the Notes on the preceding Payment Date calculated at the Note Interest Rate
with respect to the Interest Period equivalent to such Accrual Period and (b)
with respect to the amount of each Borrowing during such Accrual Period, the
amount of interest accrued on the amount of each such Borrowing calculated at
the Note Interest Rate with respect to the Interest Period relating to such
Borrowing, provided that if any principal amount described in clause (a) or (b)
together with interest accrued thereon to the date of payment is paid prior to
the end of such Accrual Period pursuant to Section 3.8 of the Sale and Servicing
Agreement, then (x) Note Monthly Interest with respect to such Accrual Period
shall not include the amount of interest so prepaid and (y) such principal
amount shall cease accruing interest as of the date preceding such prepayment.
Amounts prepaid pursuant to such Section 3.8 shall be allocated among the
amounts set forth in clauses (a) and (b) of the preceding sentence by the Agent,
after consultation with the Servicer.
"OAC" has the meaning specified in the preamble to this
Agreement.
"Owners" shall mean the Purchasers that are owners of record
of the Notes or, with respect to any Note held by the Agent hereunder as nominee
on behalf of Purchasers, the Purchasers that are owners of the Class A
Outstanding Amount represented by such Note as reflected on the books of the
Agent in accordance with this Agreement.
"Other Parties" has the meaning assigned to such term in
subsection 6.4(b).
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"Owner Trustee" means Wilmington Trust Company, a Delaware
banking company, not in its individual capacity but solely as owner trustee
under the Trust Agreement, and any successor thereto.
"Participant" has the meaning specified in subsection 8.1(d)
of this Agreement.
"Participation" has the meaning specified in subsection 8.1(d)
of the Agreement.
"Percentage Interest" shall mean, for a Purchaser on any day,
the percentage equivalent of (a) the sum of (i) the aggregate of the portions of
each Borrowing (if any) funded by such Purchaser prior to such day pursuant to
Section 10.1 of the Indenture, plus (ii) any portion of the Class A Outstanding
Amount of the Notes acquired by such Purchaser as an Assignee from another
Purchaser pursuant to a Transfer Supplement executed and delivered pursuant to
Section 8.1 of this Agreement, minus (iii) the aggregate amount of principal
payments made to such Purchaser prior to such day, minus (iv) any portion of the
Class A Outstanding Amount of the Notes assigned by such Purchaser to an
Assignee pursuant to a Transfer Supplement executed and delivered pursuant to
Section 8.1 of this Agreement, divided by (b) the Class A Outstanding Amount of
the Notes on such day.
"Purchase Limit" shall mean for any date the aggregate
Commitments of the Purchasers on such date.
"Purchaser" has the meaning specified in the preamble to this
Agreement.
"Related Documents" shall mean, collectively, this Agreement
(including the Fee Letter and all Joinder Supplements and Transfer Supplements),
the Indenture, the Custodial Agreement, the Notes, the Trust Agreement, the
Certificates, the CSFBi Warrant, the CSFBi Warrant Registration Rights
Agreement, the Agreement re Bankruptcy and the Sale and Servicing Agreement.
"Required Owners" shall mean, at any time, Owners having
Percentage Interests aggregating greater than 50%.
"Required Purchasers" shall mean, at any time, Committed
Purchasers having Commitments aggregating greater than 50% of the aggregate
Commitments of all Committed Purchasers.
"Requirement of Law" shall mean, as to any Person, any law,
treaty, rule or regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to which
such Person is subject, whether federal, state or local (including usury laws,
the Federal Truth in Lending Act and Regulation Z and Regulation B of the Board
of Governors of the Federal Reserve System).
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"Sale and Servicing Agreement" means the sale and servicing
agreement, dated as of February 9, 2001, among the Issuer, the Seller, the
Servicer, the Depositor, the Transferor, the Backup Servicer, the Custodian and
the Indenture Trustee, as amended, supplemented or otherwise modified from time
to time.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Structured Purchaser" shall mean any Purchaser which is a
special purpose corporation, the principal business of which consists of issuing
commercial paper, medium term notes or other securities to fund its acquisition
and maintenance of receivables, accounts, instruments, chattel paper, general
intangibles and other similar assets or interests therein, and which is
identified as a Structured Purchaser in the Joinder Agreement or Transfer
Supplement by which such Committed Purchaser became a party to this Agreement.
"Support Facility" shall mean any liquidity or credit support
agreement with a Structured Purchaser which relates to this Agreement (including
any agreement to purchase an assignment of or participation in Notes).
"Support Party" shall mean any bank or other financial
institution extending or having a commitment to extend funds to or for the
account of a Structured Purchaser (including by agreement to purchase an
assignment of or participation in Notes) under a Support Facility. Each
Liquidity Provider for a Noncommitted Purchaser which is a Structured Purchaser
shall be deemed to be a Support Party for such Structured Purchaser.
"Taxes" has the meaning assigned to such term in subsection
6.3(a).
"Term Out Rate" shall mean, as of any date, the sum of (i) the
Applicable Treasury Yield as of such date, (ii) 7% and (iii) to the extent that
the then-current "spread-to-treasuries" for manufactured housing backed notes
with a comparable average life and a comparable issue size (calculated by taking
the average of two bids for such spread-to-treasuries as determined by the Agent
and two of the then ten top ranked lead underwriters for such securities or such
other Persons as may be agreed to from time to time by the Issuer and the
Purchasers) exceeds the spread set forth in clause (ii), such excess.
"Transfer" has the meaning specified in subsection 8.1(c) of
this Agreement.
"Transferee" has the meaning specified in subsection 8.1(c) of
this Agreement.
"Transfer Supplement" has the meaning specified in subsection
8.1(e) of this Agreement.
"Trust Agreement" means the trust agreement, dated as of
February 9, 2001, between the Depositor and the Owner Trustee.
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"written" or "in writing" (and other variations thereof) shall
mean any form of written communication or a communication by means of telex,
telecopier device, telegraph or cable.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) The words "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection and Exhibit references are to this Agreement, unless otherwise
specified. The words "including" and "include" shall be deemed to be followed by
the words "without limitation".
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Purchases. (a) The Purchasers hereby direct that the Notes be
registered in the name of the Agent, as nominee on behalf of the Purchasers from
time to time hereunder. On and subject to the terms and conditions of this
Agreement, one or more of the Purchasers shall advance to the Issuer, as the
purchase price for the Notes, an amount equal to the Original Class A Note
Principal Balance on the Closing Date. Such payment shall constitute a Borrowing
for the purposes hereof and the Related Documents.
(b) On and subject to the terms and conditions of this
Agreement and prior to the Facility Termination Date, (i) each Noncommitted
Purchaser may advance its Noncommitted Purchaser Percentage of any Borrowing
made pursuant to Section 10.1 of the Indenture, (ii) each Liquidity Provider,
severally, agrees to acquire its respective Liquidity Percentage of each
Borrowing not so acquired by its related Noncommitted Purchaser, and (iii) each
Committed Purchaser, severally, agrees to advance its Committed Purchaser
Percentage of each Borrowing so made; provided that in no event shall a
Committed Purchaser be required on any date to make an advance exceeding its
aggregate Available Commitment, determined prior to giving effect to such
advance; provided, further that in no event shall Borrowings occur more
frequently than twice every calendar week unless otherwise consented to by the
Agent, in its sole discretion. Such advance shall be made available to the
Issuer, subject to the satisfaction of the conditions specified in Section 3.2
hereof, at or prior to 2:00 p.m. New York City time on the applicable Borrowing
Date by deposit of immediately available funds to the account specified by the
Issuer.
(c) Each Borrowing on the applicable Borrowing Date shall be
made on prior notice from the Issuer received by the Agent not later than 2:00
p.m. New York City time on the Business Day immediately preceding such Borrowing
Date. Each such notice shall be irrevocable and shall specify (i) the aggregate
amount of the Borrowing, and (ii) the applicable Borrowing Date (which shall be
a Business Day). The Agent shall promptly forward a copy of such notice to each
Purchaser. Each Noncommitted Purchaser shall notify the Agent by 9:30
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a.m., New York City time, on the applicable Borrowing Date whether it has
determined to make the advance requested pursuant to this subsection 2.1. In the
event that a Noncommitted Purchaser shall not have timely provided such notice
such Noncommitted Purchaser shall be deemed to have determined not to make such
purchase. The Agent shall notify the Issuer, the Servicer and each Liquidity
Provider for such Noncommitted Purchaser on or prior to 10:00 a.m., New York
City time, on the applicable Borrowing Date of whether such Noncommitted
Purchaser has so determined to advance its share of the Borrowing, and, in the
event that Noncommitted Purchasers have not determined to advance the Borrowing,
the Agent shall specify in such notice (i) the portion of the Borrowing to be
advanced by each Liquidity Provider, and (ii) the applicable Borrowing Date
(which shall be a Business Day). The Agent shall notify the Issuer, the
Depositor, the Transferor, the Seller, the Servicer, the Indenture Trustee and
each Purchaser not later than the Business Day following the applicable
Borrowing Date of the identity of each Purchaser which advanced any portion of
the Borrowing on such day, whether such Purchaser was a Noncommitted Purchaser
or a Committed Purchaser and the portion of the Borrowing advanced by such
Purchaser.
(d) In no event may any Borrowing be made hereunder or under
Section 10.1 of the Indenture, nor shall any Committed Purchaser be obligated to
advance any portion of any Borrowing, to the extent that such Borrowing would
exceed the aggregate Available Commitments.
(e) The Notes shall be paid as provided in the Indenture, and
the Agent shall allocate to the Owners each payment in respect of the Notes
received by the Agent in its capacity as Noteholder as provided therein.
Payments in reduction of the Class A Outstanding Amount of the Notes shall be
applied to Owners pro rata based on their respective Percentage Interests of the
Class A Outstanding Amount of Notes.
(f) The Agent shall keep records of each Borrowing, each
Interest Period applicable thereto, the interest rate(s) applicable to the Notes
and each payment of principal and interest thereon. Such records shall be
rebuttably presumptive evidence of the subject matter thereof absent manifest
error.
2.2 Reductions of Commitments. (a) At any time the Issuer may, upon at
least three Business Days' prior written notice to the Agent, terminate the
Commitments or reduce the aggregate Commitments or, with the consent of the
Agent, terminate or reduce the Commitment of one or more Purchasers. Each such
partial reduction shall be in an aggregate amount of $10,000,000 or integral
multiples of $1,000,000 in excess thereof (or such other amount requested by the
Issuer to which the Agent consents). Reductions of the aggregate Commitments of
all Purchasers pursuant to this subsection 2.2(a) shall be allocated (i) to the
Commitment of each Committed Purchaser, other than a Commitment held as a
Liquidity Provider, pro rata based on the Commitment Percentage represented by
such Commitment, and (ii) to the aggregate Commitments of Liquidity Providers
for each Noncommitted Purchaser pro rata based on the
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Noncommitted Purchaser Percentage of such Noncommitted Purchaser, and the
portion of any such reduction which is so allocated to the aggregate Commitments
of Liquidity Providers for a Noncommitted Purchaser shall be allocated to the
Commitment of each such Liquidity Provider pro rata based on its respective
Liquidity Percentage. No reduction or termination of the Commitments shall
reduce the aggregate Commitments below the outstanding principal amount of the
Notes.
(b) On the Facility Termination Date, the Commitment of each
Committed Purchaser shall be automatically reduced to zero.
(c) Subject to the provisions of subsections 8.1(a) and
8.1(b), any Person may from time to time with the consent of the Agent and the
Issuer become a party to this Agreement as an initial Noncommitted Purchaser or
an initial Committed Purchaser by (i) delivering to the Issuer an Investment
Letter and (ii) entering into an agreement substantially in the form attached
hereto as Exhibit B hereto (a "Joinder Supplement"), with the Agent and the
Issuer, acknowledged by the Servicer, which shall specify (A) the name and
address of such Person for purposes of Section 9.2 hereof, (B) whether such
Person will be a Noncommitted Purchaser or Committed Purchaser and, if such
Person will be a Committed Purchaser, and its Commitment, (C) if such Person is
a Noncommitted Purchaser, the identity of its Liquidity Providers and their
respective Liquidity Percentages, (D) if such Person is a Liquidity Provider,
the Noncommitted Purchaser for which it is acting as such and the portion of
such Person's Commitment which is held by it in its capacity as Liquidity
Provider, and (E) the other information provided for in such form of Joinder
Supplement. Upon its receipt of a duly executed Joinder Supplement, the Agent
shall on the effective date determined pursuant thereto give notice of such
effectiveness to the Issuer, the Servicer and the Indenture Trustee.
2.3 Fees, Expenses, Payments, Etc. (a) The Issuer and Seller agree to
pay to the Agent for the account of the Purchasers, the Fees and other amounts
payable by them set forth in the Fee Letter at the times specified therein.
(b) The Seller further agrees to pay within 30 days following
receipt of an invoice therefor to the Agent and the initial Purchasers all
reasonable costs and expenses in connection with the preparation, execution,
delivery, administration (including any amendments, waivers or consents of any
of the Related Documents requested by the Seller or its Affiliates) of this
Agreement and each related Support Facility to the extent related to the Notes,
and the other documents to be delivered hereunder or in connection herewith,
including the reasonable fees and out-of-pocket expenses of counsel for the
Agent and each of the initial Purchasers with respect thereto.
(c) The Issuer agrees to pay to the Agent and, following the
occurrence and during the continuance of an Event of Default, each Purchaser,
promptly following presentation of an invoice therefor, all reasonable costs and
expenses (including reasonable fees and expenses
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of counsel), if any, in connection with the enforcement of any of the Related
Documents, and the other documents delivered thereunder or in connection
therewith.
(d) The Seller further agrees to pay on demand any and all
stamp, transfer and other taxes and governmental fees payable in connection with
the execution, delivery, filing and recording of any of the Related Documents or
the other documents and agreements to be delivered hereunder and thereunder or
otherwise in connection with the issuance of the Notes, and agrees to save each
Purchaser and the Agent harmless from and against any liabilities with respect
to or resulting from any delay in paying or any omission to pay such taxes and
fees.
(e) Interest, periodic fees or other periodic amounts payable
hereunder shall be calculated, unless otherwise specified in the Fee Letter, on
the basis of a 360-day year and for the actual days elapsed, provided that
interest paid based on the rate set forth in clause (a) of the definition of
Base Rate shall be calculated on the basis of a 365 or 366-day year, as the case
may be, and for actual days elapsed.
(f) All payments to be made hereunder or under the Indenture,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 2:30 p.m., New York
City time, on the due date thereof to the Agent's account specified in
subsection 9.2(b) hereof, in United States dollars and in immediately available
funds. Payments received by the Agent after 2:30 p.m. New York City time shall
be deemed to have been made on the next Business Day. Notwithstanding anything
herein to the contrary, if any payment due hereunder becomes due and payable on
a day other than a Business Day, the payment date thereof shall be extended to
the next succeeding Business Day and in the case of principal, interest shall
accrue thereon at the applicable rate during such extension. To the extent that
(i) the Indenture Trustee, the Depositor, the Transferor, the Seller, the Issuer
or the Servicer makes a payment to the Agent or a Purchaser or (ii) the Agent or
a Purchaser receives or is deemed to have received any payment or proceeds for
application to an obligation, which payment or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a Indenture Trustee, receiver or any other party
under any bankruptcy or insolvency law, state or Federal law, common law, or for
equitable cause, then, to the extent such payment or proceeds are set aside, the
obligation or part thereof intended to be satisfied shall be revived and
continue in full force and effect, as if such payment or proceeds had not been
received or deemed received by the Agent or the Purchasers, as the case may be.
2.4 Indemnification. (a) OAC (the "Indemnitor") agrees to indemnify and
hold harmless the Agent, each Purchaser and each Affected Party and any
directors, officers, employees or agents, of the Agent, the Purchasers or the
Affected Parties (each such Person being referred to as an "Indemnitee") from
and against any and all claims, damages, losses, liabilities, costs or expenses
whatsoever (including reasonable fees and expenses of legal counsel) which such
Indemnitee may incur (or which may be claimed against such Indemnitee)
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arising out of, by reason of or in connection with the execution and delivery
of, or payment or other performance under, or the failure by a Person other than
an Indemnitee to make payments or perform under, any Related Document or the
issuance of the Notes (including in connection with the preparation for defense
of any investigation, litigation or proceeding arising out of, related to or in
connection with such execution, delivery, payment, performance or issuance),
except (i) to the extent that any such claim, damage, loss, liability, cost or
expense shall be caused by the willful misconduct, bad faith, recklessness or
gross negligence of, or breach of any representation or warranty in any Related
Document or Support Facility by, any Indemnitee, (ii) to the extent that any
such claim, damage, loss, liability, cost or expense is covered or addressed by
subsection 2.3(c) or (d) hereof, (iii) to the extent that any such claim,
damage, loss, liability, cost or expense relates to disclosure made by an
Indemnitee, the Owner Trustee or the Indenture Trustee in connection with an
Assignment or Participation pursuant to Section 8.1 of this Agreement which
disclosure is not based on information given to such Indemnitee by or on behalf
of the Seller, the Servicer, the Transferor or the Depositor, or any affiliate
thereof or by or on behalf of the Indenture Trustee, (iv) to the extent that
such claim, damage, loss, liability, cost or expense shall be caused by any
default in payment of any Receivable, (v) to the extent such claim, damage,
loss, liability, cost or expense shall be caused by any act or default of a
successor Servicer which is not an Affiliate of OAC, (v) to the extent such
claim, damage, loss, liability, cost or expense shall be caused by any mismatch
between the interest rate paid on the Notes and the cost to any Purchaser of
obtaining funds to maintain its investment the Notes or (v) to the extent such
claim, damage, loss, liability, cost or expense shall be caused by any increase
in the LIBO Rate. The foregoing indemnity shall include any claims, damages,
losses, liabilities, costs or expenses to which any such Indemnitee may become
subject under Securities Act, the Securities Exchange Act of 1934, as amended,
the Investment Company Act of 1940, as amended, or other federal or state law or
regulation arising out of or based upon any untrue statement or alleged untrue
statement of a material fact in any disclosure document relating to the Notes or
any amendments thereof or supplements thereto, in any case, provided or approved
by the Issuer (other than statements provided by the Indemnitee expressly for
inclusion therein) or arising out of, or based upon, the omission or the alleged
omission to state a material fact necessary to make the statements therein or
any amendment thereof or supplement thereto, in light of the circumstances in
which they were made, not misleading (other than with respect to statements
provided by the Indemnitee expressly for inclusion therein).
(b) Promptly after the receipt by an Indemnitee of a notice of
the commencement of any action against an Indemnitee, such Indemnitee will
notify the Agent and the Agent will, if a claim in respect thereof is to be made
against the Indemnitor pursuant to subsection 2.4(a), notify such Indemnitor in
writing of the commencement thereof; but the omission so to notify such party
will not relieve such party from any liability which it may have to such
Indemnitee pursuant to the preceding paragraph except to the extent the
Indemnitor is materially prejudiced by such failure. If any such action is
brought against an Indemnitee and it notifies the Indemnitor of its
commencement, the Indemnitor will be entitled to participate in and, to the
extent that it so elects by delivering written notice to the Indemnitee after
receiving
-15-
notice of the commencement of the action from the Indemnitee, to assume the
defense of any such action, with counsel mutually satisfactory to such
Indemnitor and each affected Indemnitee. After delivery of such notice by an
Indemnitor to an Indemnitee, the Indemnitor will not be liable to such
Indemnitee for any legal or other expenses except as provided below and except
for the reasonable costs of investigation incurred by the Indemnitee in
connection with the defense of such action. Each Indemnitee will have the right
to employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of the such Indemnitee unless (i)
the employment of such counsel by such Indemnitee has been authorized in writing
by the Indemnitor, (ii) the Indemnitor shall have failed to assume the defense
and employ counsel, (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnitee and either the
Indemnitor or another person or entity that may be entitled to indemnification
from the Indemnitor (by virtue of this Section 2.4 or otherwise) and such
Indemnitee and the Indemnitor shall have been advised by counsel to the
Indemnitor that there are one or more legal defenses available to such
Indemnitee which are different from or additional to those available to an
Indemnitor or such other party and which present a conflict of interest or shall
otherwise have reasonably determined that the co-representation would present a
conflict of interest (in which case the Indemnitor will not have the right to
direct the defense of such action on behalf of the Indemnitee). In any such case
described in clauses (i) through (iii) of the preceding sentence, the reasonable
fees, disbursements and other charges of counsel to such Indemnitee will be at
the expense of the Indemnitor; it being understood that in no event shall the
Indemnitor be liable for the fees, disbursements and other charges of more than
one counsel (in addition to any local counsel) for all Indemnitees in connection
with any one action or separate but similar or related actions arising out of
the same general allegations or circumstances. The Indemnitor shall not be
liable for any settlement of any such action, suit or proceeding effected
without its written consent, which shall not be unreasonably withheld, but if
settled with the written consent of the Indemnitor or if there shall be a final
judgment for the plaintiff in any such action, suit or proceeding, the
Indemnitor agrees to indemnify and hold harmless any Indemnitee to the extent
set forth herein from and against any loss, claim, damage, liability or
reasonable expense by reason of such settlement or judgment. The Indemnitor
shall not, without the prior written consent of an Indemnitee (not to be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder, if such settlement,
compromise or consent includes an admission of culpability or wrong-doing on the
part of such Indemnitee or the entry or an order, injunction or other equitable
or nonmonetary relief (including any administrative or other sanctions or
disqualifications) against such Indemnitee or if such settlement, compromise or
consent does not includes an unconditional release of such Indemnitee from all
liability arising out of such claim, action, suit or proceeding.
(c) The obligations of OAC under this Section 2.4 shall be
absolute, unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement. Without limiting the foregoing,
neither the lack of validity or enforceability of, or
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any modification to, any Related Document nor the existence of any claim,
setoff, defense (other than a defense of payment) or other right which OAC may
have at any time against the Agent any Purchaser, any Affected Party or any
other Person, whether in connection with any Related Document or any unrelated
transactions, shall constitute a defense to such obligations.
(d) Each Affected Party shall be entitled to receive
indemnification pursuant to this Section 2.4 as though it were a Purchaser and
this Section 2.4 applied to its interest in or commitment to acquire an interest
in the Notes.
2.5 Events of Default. If any Event of Default shall occur and be
continuing, (A) if such event is an Event of Default specified in paragraph (d)
of the definition thereof with respect to the Issuer, automatically the
Commitments shall immediately terminate, and (B) if such event is any other
Event of Default, with the consent of the Required Purchasers and the Required
Owners, the Agent may, or upon the request of the Required Purchasers and the
Required Owners, the Agent shall, by notice to the Issuer, declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate.
2.6 Notification of Note Monthly Interest. On the third Business Day
immediately preceding each Payment Date, the Agent shall calculate the Note
Monthly Interest applicable to all Notes for the applicable Accrual Period and
shall notify the Indenture Trustee and the Servicer of such amount by written
notice in the form of Exhibit C hereto. Such rate and amount shall be calculated
using an estimate of the Note Interest Rate, if necessary, for the remaining
days in such Accrual Period.
SECTION 3. CONDITIONS PRECEDENT
3.1 Condition to Initial Purchase. The following shall be conditions
precedent to the initial purchase by any Purchaser of the Notes unless waived by
the Agent with the consent of the Required Purchasers:
(a) This Agreement shall have been executed and delivered, and the
Related Documents shall have been executed and delivered and shall have become
effective in accordance with their respective terms.
(b) All of the terms, covenants, agreements and conditions of this
Agreement, the Fee Letter and the Related Documents to be complied with and
performed by OAC, the Seller, the Servicer, the Issuer, the Depositor, the
Transferor, the Owner Trustee or the Indenture Trustee, as the case may be, by
the Closing Date shall have been complied with in all material respects or
otherwise waived by the Agent.
(c) Each of the representations and warranties of each of OAC, the
Seller, the Servicer, the Issuer, the Depositor, the Transferor, the Owner
Trustee or the Indenture Trustee, as the case may be, made in this Agreement and
in the Related Documents shall be true and correct
-17-
in all material respects as of the time of the Closing Date as though made as of
such time (except to the extent that they expressly relate to an earlier or
later time).
(d) No Default or Event of Default shall have occurred and be
continuing
(e) The Agent shall have received:
(i) Certified copies of the resolutions of the Board of
Directors or comparable body of each of OAC, OHC, the Transferor and the
Depositor approving this Agreement and the other Related Documents to which it
is a party and any other documents contemplated thereby and certified copies of
all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the other Related
Documents to which it is a party and any other documents contemplated thereby;
(ii) An officer's certificate of each of OAC, OHC, the
Transferor, the Depositor and the Owner Trustee, certifying the names and true
signatures of the officers authorized to sign this Agreement and the other
Related Documents and any other documents to be delivered by it hereunder or
thereunder;
(iii) A copy of the bylaws of each of OAC and OHC, certified
by an officer thereof;
(iv) A certified copy of the charter or limited liability
company agreement of each of OAC, OHC, the Transferor and the Depositor, a
certificate as to the good standing of each of OAC and OHC from the Secretary of
State of the State of North Carolina and a certificate as to the good standing
of each of the Transferor and the Depositor from the Secretary of State of the
State of Delaware, in each case dated as of a recent date;
(v) Proper financing statements under the UCC of all
jurisdictions that the Agent may deem necessary or desirable in order to perfect
the ownership and security interests contemplated by the Sale and Servicing
Agreement, the Indenture and this Agreement;
(vi) Executed copies of proper financing statements, if any,
necessary to release all security interests and other rights, if any, of any
Person in the Trust Estate previously granted by the Transferor, the Seller, the
Depositor or the Issuer;
(vii) Completed requests for information, dated on or before
the Closing Date, in all jurisdictions referred to in subsection (vi) above that
name the Issuer, the Transferor, the Depositor or OAC as debtor, together with
copies of such other financing statements;
(viii) An opinion of Hunton & ββββββββ, special counsel to
OAC, dated the Closing Date, in form and substance satisfactory to the Agent;
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(ix) An opinion of ββββββββ, ββββββ & Finger, counsel to the
Owner Trustee and special Delaware counsel to the Issuer, dated the Closing
Date, in form and substance satisfactory to the Agent;
(x) An opinion of internal counsel for the Indenture Trustee,
Custodian and Backup Servicer, dated the Closing Date, in form and substance
satisfactory to the Agent;
(xi) A favorable written opinion of Loeb & Loeb, counsel for
the Transferor, dated the Closing Date, in form and substance satisfactory to
the Agent;
(xii) A copy of the documentation evidencing the release of
all liens attaching to the Receivables pursuant to previous financings; and
(xiii) Such other documents, instruments, certificates and
opinions as the Agent may reasonably request.
(f) No action, suit, proceeding or investigation by or before any
Governmental Authority shall have been instituted to restrain or prohibit the
consummation by the Agent or the Purchasers of, or to invalidate, the
transactions contemplated by this Agreement or the other Related Documents in
any material respect.
(g) Each of the Structured Purchasers shall have entered into total
return swaps with Credit Suisse First Boston International in form and substance
satisfactory to such Structured Purchaser.
(h) OHC shall have issued the CSFBi Warrant, in substantially the
form of Exhibit D hereto, to CSFBi.
(i) OHC and CSFBI shall have entered into a Registration Rights
Agreement, in substantially the form of Exhibit E hereto (the "CSFBi Warrant
Registration Rights Agreement"), with respect to the CSFBi Warrant.
(j) OHC, OAC and Oakwood Capital Corporation shall have executed
and delivered to the Agent the Agreement re Bankruptcy (the "Agreement re
Bankruptcy"), in substantially the form of Exhibit F hereto.
3.2 Condition to Borrowings. The following shall be conditions
precedent to each Borrowing hereunder unless waived by the Agent with the
consent of the Required Purchasers:
(a) the Issuer shall have timely delivered a notice of Borrowing
pursuant to subsection 2.1(b) of this Agreement;
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(b) no Default or Event of Default shall have occurred and be
continuing on such date;
(c) both immediately prior to and after giving effect to such
Borrowing and the application of the proceeds thereof as provided herein and in
the Indenture, the Class A Outstanding Amount of the Notes shall not exceed the
Borrowing Base;
(d) the conditions set forth in proviso (ii) of Section 10.1 of the
Indenture with respect to such Borrowing shall have been satisfied.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of OAC . OAC hereby represents and
warrants to the Agent and the Purchasers that as of the date hereof and the
Closing Date and each Borrowing Date:
(a) It is a validly existing and in good standing under the laws of
its jurisdiction of organization, with full power and authority under such laws
to own its properties and conduct its business as such properties are currently
owned and such business is currently conducted and to execute, deliver and
perform its obligations under this Agreement and the other Related Documents to
which it is a party.
(b) It has the power, authority and right to make, execute, deliver
and perform this Agreement and the other Related Documents to which it is a
party and all the transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and the other Related Documents to which it is a party. When executed
and delivered, each of this Agreement and the other Related Documents to which
it is a party will constitute its legal, valid and binding obligations,
enforceable against it in accordance with its terms, subject, as to such
enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws relating to or affecting creditors' rights generally from time to
time in effect. The enforceability of its obligations under such agreements may
also be limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and no
representation or warranty is made with respect to the enforceability of its
obligations under any indemnification provisions in such agreements to the
extent that indemnification is sought in connection with securities laws
violations.
(c) No consent, license, approval or authorization of, or
registration with, any Governmental Authority is required to be obtained by it
in connection with the execution, delivery or performance of each of this
Agreement and the other Related Documents to which it is a party that has not
been duly obtained and that is not and will not be in full force and effect on
the Closing Date, except such that may be required by the blue sky laws of any
state and except
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for any UCC filings necessary to perfect the Liens granted pursuant to the
Indenture or mortgage recordings required following an Assignment Event.
(d) The execution, delivery and performance of each of this
Agreement and the other Related Documents to which it is a party do not violate
any provision of any existing law or regulation applicable to it, any order or
decree of any court to which it is subject, its organizational documents, or any
mortgage, indenture, contract or other agreement to which it is a party or by
which it or any significant portion of its properties is bound (other than
violations of such laws, regulations, orders, decrees, documents, mortgages,
indentures, contracts and other agreements that, individually or in the
aggregate, would not have a material adverse effect on its ability to perform
its obligations under this Agreement or the other Related Documents to which it
is a party).
(e) Except as disclosed in writing to the Agent prior to the
Closing Date, there is no litigation or administrative proceeding before any
court, tribunal or governmental body pending or, to its knowledge, threatened
against it, with respect to this Agreement, the Related Documents to which it is
a party, the transactions contemplated hereby or thereby or the issuance of the
Notes, and there is no such litigation or proceeding against it or any
significant portion of its properties that is expected by it to have a material
adverse effect on the transactions contemplated by, or its ability to perform
its obligations under, this Agreement or the other Related Documents to which it
is a party.
(f) It has delivered to the Agent complete and correct copies of
OHC's audited financial statements for the years ended September 30, 1998,
September 30, 1999 and September 30, 2000.
(g) No report, statement, exhibit or other written information
required to be furnished by OAC or any of its Affiliates to the Agent or any
Purchaser pursuant to this Agreement or the other Related Documents is or shall
be inaccurate in any material respect, or contains or shall contain any material
misstatement of fact, or omits or shall omit to state a material fact necessary
to make the statements contained therein, in light of the circumstances under
which such statements were made, not misleading, in each case, as of the date it
is or shall be dated or (except as otherwise disclosed to the Agent at such
time) as of the date so furnished.
(h) Each of the Related Documents to which it is a party is in full
force and effect with respect to it and no Default or Event of Default has
occurred with respect to it.
(i) OAC repeats and reaffirms to the Agent and the Owners each of
the representations and warranties of OAC in the Section 2.1 of the Sale and
Servicing Agreement and each other document delivered in connection therewith or
herewith, and represents that such representations and warranties are true and
correct in all material respects.
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(j) As of the Closing Date, based upon, among other things, the
representations and warranties and covenants of the Agent and the Purchasers
hereunder, the sale of the Notes by the Issuer pursuant to the terms of this
Agreement and the Indenture will not require the registration of such Notes
under the Securities Act.
(k) All tax returns (federal, state and local) required to be filed
with respect to OAC have been filed (which filings may be made by an Affiliate
of OAC on a consolidated basis covering OAC and other Persons) and there has
been paid or adequate provision made for the payment of all taxes, assessments
and other governmental charges in respect of OAC (or in the event consolidated
returns have been filed, with respect to the Persons subject to such returns)
and any taxes for which adequate provision has not been made would not have a
material adverse effect on OAC's ability to perform its obligations hereunder.
(l) The Indenture is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and none of OAC, the Depositor, the
Transferor or the Issuer is required to be registered under the Investment
Company Act of 1940, as amended.
(m) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of OAC since the year
ended September 30, 2000.
(n) As of the Closing Date, the chief executive office of OAC is at
the address indicated in Section 9.2 hereof.
(o) Since the Closing Date (except as approved by the Agent in
writing), there have been no material changes in the Credit and Collection
Policy.
(p) As of the date hereof: (i) OAC has only the subsidiaries and
divisions listed on Schedule IV to the Sale and Servicing Agreement; and (ii)
OAC has, within the last five (5) years, operated only under the tradenames
identified in Schedule IV to the Sale and Servicing Agreement, and, within the
last five (5) years, has not changed its name, merged with or into or
consolidated with any other corporation or been the subject of any proceeding
under βββββ ββ, ββββββ ββββββ Code (Bankruptcy), except as disclosed in such
Schedule IV.
(q) OAC and each Affiliate thereof is in compliance in all material
respects with ERISA and no lien in favor of the Pension Benefit Guaranty
Corporation on any of the Contracts or Receivables shall exist.
(r) The names and addresses of all the Lock-Box Banks, together
with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are
specified in Schedule III to the Sale and Servicing Agreement (or have been
notified to the Indenture Trustee).
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4.2 Representations and Warranties of the Issuer. The Issuer hereby
represents and warrants to the Agent and the Purchasers that as of the date
hereof and the Closing Date and each Borrowing Date:
(a) It is a business trust validly existing and in good standing
under the laws of the State of Delaware, with full power and authority under
such laws to own its properties and conduct its business as such properties are
currently owned and such business is currently conducted and to execute, deliver
and perform its obligations under this Agreement and the other Related Documents
to which it is a party.
(b) It has the power, authority and right to make, execute, deliver
and perform this Agreement and the other Related Documents to which it is a
party and all the transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and the other Related Documents to which it is a party. When executed
and delivered, each of this Agreement and the other Related Documents to which
it is a party will constitute its legal, valid and binding obligations,
enforceable against it in accordance with its terms, subject, as to such
enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws relating to or affecting creditors' rights generally from time to
time in effect. The enforceability of its obligations under such agreements may
also be limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and no
representation or warranty is made with respect to the enforceability of its
obligations under any indemnification provisions in such agreements to the
extent that indemnification is sought in connection with securities laws
violations.
(c) No consent, license, approval or authorization of, or
registration with, any Governmental Authority is required to be obtained by it
in connection with the execution, delivery or performance of each of this
Agreement and the other Related Documents to which it is a party that has not
been duly obtained and that is not and will not be in full force and effect on
the Closing Date, except such that may be required by the blue sky laws of any
state and except for any UCC filings necessary to perfect the Liens granted
pursuant to the Indenture or mortgage recordings required following an
Assignment Event.
(d) The execution, delivery and performance of each of this
Agreement and the other Related Documents to which it is a party do not violate
any provision of any existing law or regulation applicable to it, any order or
decree of any court to which it is subject, the Trust Agreement, or any
mortgage, indenture, contract or other agreement to which it is a party or by
which it or any significant portion of its properties is bound (other than
violations of such laws, regulations, orders, decrees, mortgages, indentures,
contracts and other agreements that, individually or in the aggregate, would not
have a material adverse effect on its ability to perform its obligations under
this Agreement or the other Related Documents to which it is a party).
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(e) Except as disclosed in writing to the Agent prior to the
Closing Date, there is no litigation or administrative proceeding before any
court, tribunal or governmental body pending or, to its knowledge, threatened
against it, with respect to this Agreement, the other Related Documents to which
it is a party, the transactions contemplated hereby or thereby or the issuance
of the Notes, and there is no such litigation or proceeding against it or any
significant portion of its properties that it expects to have a material adverse
effect on the transactions contemplated by, or its ability to perform its
obligations under, this Agreement or the other Related Documents to which it is
a party.
(f) No report, statement, exhibit or other written information
required to be furnished by it or any of its Affiliates to the Agent or any
Purchaser pursuant to this Agreement or the other Related Documents is or shall
be inaccurate in any material respect, or contains or shall contain any material
misstatement of fact, or omits or shall omit to state a material fact necessary
to make the statements contained therein, in light of the circumstances under
which such statements were made, not misleading, in each case, as of the date it
is or shall be dated or (except as otherwise disclosed to the Agent at such
time) as of the date so furnished.
(g) The Notes have been duly and validly authorized, and, when
executed and authenticated in accordance with the terms of the Indenture and
delivered to the Agent and paid for in accordance with this Agreement, will be
duly and validly issued and outstanding, and will be entitled to the benefits of
the Indenture, this Agreement and the other Related Documents.
(h) Each of the Related Documents to which it is a party is in full
force and effect and no Default or Event of Default with respect to it has
occurred and is continuing.
(i) The Issuer repeats and reaffirms to the Agent and the Owners
each of the representations and warranties made by it in each other document
delivered in connection therewith, and represents that such representations and
warranties are true and correct in all material respects.
(j) Any taxes, fees and other charges of Governmental Authorities
applicable to it, except for franchise or income taxes, in connection with the
execution, delivery and performance by it of this Agreement and the other
Related Documents to which it is a party or otherwise applicable to it in
connection with the transactions contemplated hereby or thereby have been paid
or will be paid at or prior to the Closing Date to the extent then due.
4.3 Representations and Warranties of the Transferor. The Transferor
hereby represents and warrants to the Agent and the Purchasers that as of the
date hereof and the Closing Date and each Borrowing Date:
(a) It is a corporation validly existing and in good standing under
the laws of the State of Delaware, with full power and authority under such laws
to own its properties and conduct its business as such properties are currently
owned and such business is currently
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conducted and to execute, deliver and perform its obligations under this
Agreement and the other Related Documents to which it is a party.
(b) It has the power, authority and right to make, execute, deliver
and perform this Agreement and the other Related Documents to which it is a
party and all the transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and the other Related Documents to which it is a party. When executed
and delivered, each of this Agreement and the other Related Documents to which
it is a party will constitute its legal, valid and binding obligations,
enforceable against it in accordance with its terms, subject, as to such
enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws relating to or affecting creditors' rights generally from time to
time in effect. The enforceability of its obligations under such agreements may
also be limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and no
representation or warranty is made with respect to the enforceability of its
obligations under any indemnification provisions in such agreements to the
extent that indemnification is sought in connection with securities laws
violations.
(c) No consent, license, approval or authorization of, or
registration with, any Governmental Authority is required to be obtained by it
in connection with the execution, delivery or performance of each of this
Agreement and the other Related Documents to which it is a party that has not
been duly obtained and that is not and will not be in full force and effect on
the Closing Date, except such that may be required by the blue sky laws of any
state and except for any UCC filings necessary to perfect the Liens granted
pursuant to the Indenture or mortgage recordings required following an
Assignment Event.
(d) The execution, delivery and performance of each of this
Agreement and the other Related Documents to which it is a party do not violate
any provision of any existing law or regulation applicable to it, any order or
decree of any court to which it is subject, its charter or By-laws, or any
mortgage, indenture, contract or other agreement to which it is a party or by
which it or any significant portion of its properties is bound (other than
violations of such laws, regulations, orders, decrees, mortgages, indentures,
contracts and other agreements that, individually or in the aggregate, would not
have a material adverse effect on its ability to perform its obligations under
this Agreement or the other Related Documents to which it is a party).
(e) Except as disclosed in writing to the Agent prior to the
Closing Date, there is no litigation or administrative proceeding before any
court, tribunal or governmental body pending or, to its knowledge, threatened
against it, with respect to this Agreement, the other Related Documents to which
it is a party, the transactions contemplated hereby or thereby or the issuance
of the Notes, and there is no such litigation or proceeding against it or any
significant portion of its properties that it expects to have a material adverse
effect on the transactions
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contemplated by, or its ability to perform its obligations under, this Agreement
or the other Related Documents to which it is a party.
(f) No report, statement, exhibit or other written information
required to be furnished by it or any of its Affiliates to the Agent or any
Purchaser pursuant to this Agreement or the other Related Documents is or shall
be inaccurate in any material respect, or contains or shall contain any material
misstatement of fact, or omits or shall omit to state a material fact necessary
to make the statements contained therein, in light of the circumstances under
which such statements were made, not misleading, in each case, as of the date it
is or shall be dated or (except as otherwise disclosed to the Agent at such
time) as of the date so furnished.
(g) Each of the Related Documents to which it is a party is in full
force and effect and Default or Event of Default with respect to it has occurred
and is continuing.
(h) The Transferor repeats and reaffirms to the Agent and the
Owners each of the representations and warranties made by it in Section 2.1 of
the Sale and Servicing Agreement and each other document delivered in connection
therewith or herewith, and represents that such representations and warranties
are true and correct in all material respects.
(i) Any taxes, fees and other charges of Governmental Authorities
applicable to it, except for franchise or income taxes, in connection with the
execution, delivery and performance by it of this Agreement and the other
Related Documents to which it is a party or otherwise applicable to it in
connection with the transactions contemplated hereby or thereby have been paid
or will be paid at or prior to the Closing Date to the extent then due.
(j) As of the Closing Date, the chief executive office of the
Transferor is at the address indicated in Section 9.2 hereof.
4.4 Representations and Warranties of the Depositor. The Depositor
hereby represents and warrants to the Agent and the Purchasers that as of the
date hereof and the Closing Date and each Borrowing Date:
(a) It is a limited liability company validly existing and in good
standing under the laws of the State of Delaware, with full power and authority
under such laws to own its properties and conduct its business as such
properties are currently owned and such business is currently conducted and to
execute, deliver and perform its obligations under this Agreement and the other
Related Documents to which it is a party.
(b) It has the power, authority and right to make, execute, deliver
and perform this Agreement and the other Related Documents to which it is a
party and all the transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and the other Related Documents to which it is a party. When executed
and delivered, each of this Agreement and the other Related Documents
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to which it is a party will constitute its legal, valid and binding obligations,
enforceable against it in accordance with its terms, subject, as to such
enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws relating to or affecting creditors' rights generally from time to
time in effect. The enforceability of its obligations under such agreements may
also be limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and no
representation or warranty is made with respect to the enforceability of its
obligations under any indemnification provisions in such agreements to the
extent that indemnification is sought in connection with securities laws
violations.
(c) No consent, license, approval or authorization of, or
registration with, any Governmental Authority is required to be obtained in
connection with the execution, delivery or performance of each of this Agreement
and the other Related Documents to which it is a party that has not been duly
obtained by it and that is not and will not be in full force and effect on the
Closing Date, except such that may be required by the blue sky laws of any state
and except for any UCC filings necessary to perfect the Liens granted pursuant
to the Indenture or mortgage recordings required following an Assignment Event.
(d) The execution, delivery and performance of each of this
Agreement and the other Related Documents to which it is a party do not violate
any provision of any existing law or regulation applicable to it, any order or
decree of any court to which it is subject, its limited liability company
agreement, or any mortgage, indenture, contract or other agreement to which it
is a party or by which it or any significant portion of its properties is bound
(other than violations of such laws, regulations, orders, decrees, mortgages,
indentures, contracts and other agreements that, individually or in the
aggregate, would not have a material adverse effect on its ability to perform
its obligations under this Agreement or the other Related Documents to which it
is a party).
(e) Except as disclosed in writing to the Agent prior to the
Closing Date, there is no litigation or administrative proceeding before any
court, tribunal or governmental body pending or, to its knowledge, threatened
against it, with respect to this Agreement, the other Related Documents to which
it is a party, the transactions contemplated hereby or thereby or the issuance
of the Notes, and there is no such litigation or proceeding against it or any
significant portion of its properties that it expects to have a material adverse
effect on the transactions contemplated by, or its ability to perform its
obligations under, this Agreement or the other Related Documents to which it is
a party.
(f) No report, statement, exhibit or other written information
required to be furnished by it or any of its Affiliates to the Agent or any
Purchaser pursuant to this Agreement or the other Related Documents is or shall
be inaccurate in any material respect, or contains or shall contain any material
misstatement of fact, or omits or shall omit to state a material fact necessary
to make the statements contained therein, in light of the circumstances under
which
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such statements were made, not misleading, in each case, as of the date it is or
shall be dated or (except as otherwise disclosed to the Agent at such time) as
of the date so furnished.
(g) Each of the Related Documents to which it is a party is in full
force and no Default or Event of Default with respect to it has occurred and is
continuing.
(h) The Depositor repeats and reaffirms to the Agent and the Owners
each of the representations and warranties made by it in Section 2.1 of the Sale
and Servicing Agreement and in the Trust Agreement and each other document
delivered in connection therewith or herewith, and represents that such
representations and warranties are true and correct in all material respects.
(i) Any taxes, fees and other charges of Governmental Authorities
applicable to it, except for franchise or income taxes, in connection with the
execution, delivery and performance by it of this Agreement and the other
Related Documents to which it is a party or otherwise applicable to it in
connection with the transactions contemplated hereby or thereby have been paid
or will be paid at or prior to the Closing Date to the extent then due.
(j) As of the Closing Date, the chief executive office of the
Depositor is at the address indicated in Section 9.2 hereof.
SECTION 5. COVENANTS
5.1 Covenants . Each of the Seller, the Servicer, the Depositor, the
Transferor, and the Issuer, each as to itself, covenants and agrees with the
Agent and the Purchasers, through the Facility Termination Date and thereafter
so long as any amount of the Notes shall remain outstanding or any monetary
obligation arising hereunder shall remain unpaid, unless the Required Owners and
the Required Purchasers shall otherwise consent in writing, that:
(a) it shall perform in all material respects each of the
respective covenants and other agreements made by it and comply in all material
respects with each of the respective terms and provisions applicable to it under
any of the other Related Documents to which it is party; it shall take all
reasonable action to enforce the obligations of each of the other parties (other
than the Note Agent and the Purchasers) to such Related Documents which are
contained therein;
(b) the Issuer and the Servicer shall furnish to the Agent a copy
of each opinion, certificate, report, statement, notice or other communication
(other than investment instructions) relating to the Notes which is furnished by
or on behalf of it to the other or to the Indenture Trustee and furnish to the
Agent, after receipt thereof, a copy of each notice, demand or other
communication relating to the Notes, this Agreement or the Indenture received by
the Issuer or the Servicer from the Indenture Trustee, the Depositor, the
Transferor or the Seller; and (ii) such other information, documents records or
reports respecting the Collateral, the Seller, the
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Depositor, the Transferor, the Issuer or the Servicer as the Agent may from time
to time reasonably request;
(c) the Issuer shall furnish to the Agent on or before the date
such reports are due under the Indenture copies of each of the reports and
certificates required by Sections 3.9 and 3.14 of the Indenture;
(d) Each of the Seller and the Servicer shall pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all its material obligations of whatever nature (including tax
obligations), except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and appropriate reserves with
respect thereto have been provided on the books of the Seller or the Servicer,
as applicable;
(e) Each of the Seller and the Servicer shall continue to engage in
business of the same general type as now conducted by it and preserve, renew and
keep in full force and effect its existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business and comply with all Requirements of Law, except
where the failure to be so qualified or comply could not reasonably be expected
to have a material adverse affect on the Seller or the Servicer, as applicable;
(f) the Issuer, the Depositor, the Transferor, the Seller and the
Servicer shall at any time from time to time during regular business hours, on
reasonable notice to the Issuer, the Depositor, the Transferor, the Seller or
the Servicer, as the case may be, permit the Agent, or its agents or
representatives to:
(i) examine all books, records and documents (including
computer tapes and disks) in its possession or under its control with respect to
the Related Documents or the Receivables; and
(ii) visit its offices and property for the purpose of
examining such materials described in clause (i) above.
(g) the Issuer and the Servicer shall furnish to the Agent,
promptly after obtaining actual knowledge of the occurrence of any Default or
Event of Default, a certificate of the Issuer or an appropriate officer of the
Servicer, as the case may be, setting forth the circumstances of such Default or
Event of Default and any action taken or proposed to be taken by the Issuer or
the Servicer with respect thereto;
(h) it shall timely make all payments, deposits or transfers to be
made by it and give all instructions to transfer required to be given by it
under this Agreement and the Indenture;
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(i) the Seller, the Depositor, the Transferor, Issuer and the
Servicer shall execute and deliver to the Agent or the Indenture Trustee all
such documents and instruments and do all such other acts and things as may be
necessary or reasonably required by the Agent or the Indenture Trustee to enable
any of them to exercise and enforce their respective rights under the Related
Documents and to realize thereon, and record and file and rerecord and refile
all such documents and instruments, at such time or times, in such manner and at
such place or places, all as may be necessary or required by the Indenture
Trustee or the Agent to validate, preserve, perfect and protect the position of
the Indenture Trustee under the Indenture, provided no such action shall be
inconsistent with the Indenture or contrary to instructions of the Indenture
Trustee;
(j) neither the Seller, the Depositor, the Transferor, the Issuer
nor the Servicer will consolidate with or merge into any other Person or convey
or transfer its properties and assets substantially as an entirety to any
Person, except in the case of the Depositor, the Transferor, the Servicer or the
Seller, (i) in accordance with Section 5.2 of the Sale and Servicing Agreement
and (ii) with the prior written consent of the Required Owners and the Required
Purchasers, provided that, without such consent, OAC may merge into Oakwood
Acceptance Corporation, LLC, a Delaware limited liability company;
(k) OAC will not resign as Servicer, unless (A) the performance of
its duties under the Sale and Servicing Agreement is no longer permissible
pursuant to Requirements of Law and there is no reasonable action which it could
take to make the performance of such duties permissible under such Requirements
of Law, or (B) the Required Owners and the Required Purchasers shall have
consented thereto;
(l) OAC shall furnish to the Agent:
(i) (1) as soon as available and in any event within 45 days
after the end of each fiscal quarter of Oakwood Homes Corporation, a North
Carolina corporation ("OHC"), the balance sheet of OHC and its consolidated
subsidiaries as of the end of such quarter and statements of income and retained
earnings of OHC and its consolidated subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the end of such quarter,
certified by the chief financial officer of OHC and (2) as soon as available and
in any event within 90 days after the end of each fiscal year of OHC, a copy of
the annual report on Form 10-K for such year for OHC and its consolidated
subsidiaries, containing financial statements for such year accompanied by an
audit report of a nationally recognized firm of independent certified public
accountants (or such other firm of independent certified public accountants
acceptable to the Agent) which report shall be unqualified as to going concern
and scope of audit and shall state the opinion that such consolidated financial
statements present fairly the financial position of OHC and each of its
consolidated subsidiaries at the dates indicated and the results of their
operations and their cash flow for the periods indicated in
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conformity with generally accepted accounting principles and that the
examination had been made in accordance with generally accepted auditing
standards; and
(ii) Such other information (including financial information),
documents, records or reports respecting the Notes, the Trust Estate, the
Seller, the Servicer, the Depositor or the Issuer as the Agent may from time to
time reasonably request.
(m) Neither the Seller nor the Servicer shall make, or permit any
Person to make, any material amendment, modification or change to, or provide
any material waiver under, the Indenture or the other Related Documents without
the prior written consent of the Agent.
(n) Each of the Seller and the Servicer will comply in all material
respects with the Credit and Collection Policy in regard to each Receivable and
the related Contract. Each of the Seller and the Servicer shall (i) notify the
Agent ten (10) days prior to any amendment of or change in the Credit and
Collection Policy and (ii) obtain the Agent's consent prior to any such
amendment or change; provided that the Seller and the Servicer may immediately
implement any changes (and provide notice to the Agent subsequent thereto) as
may be required under applicable law from time to time upon the reasonable
determination of the Seller or the Servicer, as the case may be. The
underwriting, credit scoring, approval, servicing and collection policies and
procedures applied to Receivables and the related Contracts originated by
independent third parties shall be in accordance with the Credit and Collection
Policy and in no event shall such Receivables and related Contracts be
underwritten, credit scored, approved, serviced and collected more leniently or
less stringently than those procedures applied to Receivables and related
Contracts originated by the Seller or an Affiliate. The Seller and the Servicer
shall (i) notify the Agent ten (10) days prior to the use of any retail
installment sales contract related to the Financed Housing that contains
material changes from the form of the Contract as of the Closing Date and (ii)
obtain the Agent's consent prior to using such retail installment sales
contract; provided that the Seller and the Servicer may immediately implement
any changes (and provide notice to the Agent subsequent thereto) as may be
required under applicable law from time to time upon the reasonable
determination of the Seller or the Servicer, as the case may be.
(o) The Seller shall cause to be delivered to the Agent, within
thirty (30) days following receipt of a written request from the Agent, at the
expense of the Seller, the written report of a review conducted by an
independent auditor acceptable to the Agent of a random sampling of Contracts
that are held by the Custodian, together with all related Contract Documents
held by the Custodian.
(p) The Servicer shall instruct all Obligors to cause all
Collections to be deposited directly to a Lock-Box Account. In the event either
the Seller or the Servicer receives any Collections, the Seller or the Servicer,
as the case may be, shall hold in trust, and deposit,
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immediately, but in any event not later than one (1) Business Day of its receipt
thereof, to a Lock-Box Account all such Collections.
(q) The Seller and the Servicer shall notify the Agent within five
(5) Business Days of obtaining knowledge thereof, of any fraudulent activity or
theft in the origination or servicing of Receivables or the related Contracts
that results or may result in a loss of at least $250,000.
(r) Except as otherwise provided herein, neither the Seller, the
Servicer, the Depositor, the Transferor nor the Issuer will sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist any Lien upon .(or the filing of any financing statement) or with respect
to, any Receivable or related Contract, or upon or with respect to any Lock-Box
Account to which any Collections of any Receivable are sent, or assign any right
to receive income in respect thereof.
(s) Except as otherwise permitted in the Sale and Servicing
Agreement or with the prior written consent of the Agent, neither the Seller nor
the Servicer will extend, amend or otherwise modify the terms of any Receivable,
or amend, modify or waive any term or condition of any Contract related thereto.
(t) Neither the Seller nor the Servicer will add or terminate any
bank as a Lock-Box Bank or any account as a Lock-Box Account to or from those
listed in Schedule III to the Sale and Servicing Agreement or make any change in
its instructions to Obligors regarding payments to be made to any Lock-Box
Account, unless (i) such instructions are to deposit such payments to another
existing Lock-Box Account or (ii) the Agent shall have received written notice
of such addition, termination or change at least 30 days prior thereto.
(u) Neither the Seller, the Depositor, the Transferor nor the
Issuer will change its name, identity or structure or its chief executive
office, unless at least 30 days prior to the effective date of any such change
such person delivers to the Indenture Trustee and the Agent UCC financing
statements, executed by such Person necessary to reflect such change and to
continue the perfection of the Indenture Trustee's interest in the Receivables.
(v) Each of the Depositor and the Transferor covenants and agrees
with the Agent and the Purchasers that, unless the Agent shall otherwise consent
in writing:
(i) It shall conduct its business solely in its own name
through its duly authorized officers or agents so as not to mislead others as to
the identity of the entity with which such persons are concerned, and shall
avoid the appearance that it is conducting business on behalf of any Affiliate
thereof or that its assets are available to pay the creditors of OHC or any
Affiliate thereof (other than as expressly provided herein).
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(ii) It shall maintain corporate records and books of account
separate from those of OHC and any Affiliate (other than, in the case of the
Depositor, itself) thereof.
(iii) It shall obtain proper authorization for all action
requiring such authorization.
(iv) It shall pay its own operating expenses and liabilities
from its own funds.
(v) In the case of the Depositor, the annual financial
statements of OHC shall disclose the effects of the transactions contemplated
hereby in accordance with generally accepted accounting principles.
(vi) Its resolutions, agreements and other instruments
underlying the transactions described in this Agreement shall be continuously
maintained by it as part of its official records.
(vii) It shall maintain an arm's-length relationship with OHC
and its Affiliates (other than, in the case of the Depositor, itself), and shall
not hold itself out as being liable for the debts of OHC or any of its
Affiliates (other than, in the case of the Depositor, itself).
(viii) It shall keep its assets and liabilities separate from
those of all other entities other than as permitted herein.
(ix) It shall not maintain bank accounts or other depository
accounts to which any Affiliate is an account party or from which any Affiliate
has the power to make withdrawals.
(x) It shall not amend, supplement or otherwise modify its
organizational documents, except in accordance therewith and with the prior
written consent of the Agent.
(xi) It shall not create, incur, assume or suffer to exist any
indebtedness on which it is obligated, except as contemplated by this Agreement
and the other Related Documents. It shall not assume, guarantee, endorse or
otherwise be or become directly or contingently liable for the obligations of
any Person by, among other things, agreeing to purchase any obligation of
another Person (other than the Receivables), agreeing to advance funds to such
Person or causing or assisting such Person to maintain any amount of capital. It
shall not be party to any indenture, agreement, mortgage, deed of trust or other
instrument other than this Agreement and the other Related Documents.
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(xii) It shall not enter into, or be a party to any
transaction with any of its Affiliates, except as contemplated by this Agreement
and the other Related Documents.
(xiii) It shall observe all procedures required by its
organizational documents and preserve and maintain its existence, rights,
franchises and privileges in the jurisdiction of its formation and qualify and
remain qualified in good standing in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualifications would materially adversely affect the interests hereunder of the
Purchasers or the Agent or its ability to perform its obligations hereunder.
(xiv) It shall not form, or cause to be formed, any
subsidiaries; or make or suffer to exist any loans or advances to, or extend any
credit to, or make any investments (by way of transfer of property,
contributions to capital, purchase of stock or securities or evidences of
indebtedness (other than the Receivables), acquisition of the business or
assets, or otherwise) in, any Affiliate or any other Person except as otherwise
permitted herein.
SECTION 6. INCREASED COSTS, INCREASED CAPITAL, ETC.
6.1 Increased Costs. Subject to the provisions of Section 6.4, if, due
to the introduction of or any change (including any change by way of imposition
or increase of reserve requirements generally) in or in the Interpretation of
any law or regulation or the general imposition of any guideline or general
request from any central bank or other governmental authority after the date
hereof, there shall be an increase in the cost to an Affected Party of making,
funding or maintaining any investment in the Notes or any interest therein or of
agreeing to purchase or invest in the Notes or any interest therein, as the case
may be (other than by reason of any Interpretation of or change in laws or
regulations relating to Taxes or Excluded Taxes), the Issuer shall, upon written
demand by such Affected Party (or, if such Affected Party is not a Purchaser, by
the Purchaser from whom such Affected Party derives its rights) (with a copy to
the Agent), direct the Servicer and the Indenture Trustee in writing to pay to
the Agent for the benefit of such Affected Party (as a third party beneficiary,
in the case of an Affected Party that is not also a Purchaser hereunder) that
portion of such increased costs incurred which such Affected Party reasonably
determines is attributable to making, funding or maintaining any investment in
the Notes or any interest therein or agreeing to purchase or invest in the Notes
or any interest therein, as the case may be. In determining such amount, such
Affected Party may use any reasonable averaging and attribution methods,
consistent with the averaging and attribution methods generally used by such
Affected Party in determining amounts of this type. A certificate as to such
increased costs incurred submitted to the Servicer, the Issuer and the Agent,
setting forth the calculation thereof in reasonable detail, shall be prima facie
evidence as to the amount of such increased costs. Any Affected Party that
incurs such increased costs as described in this Section 6.1 (or, if such
Affected Party is not a Purchaser, the Purchaser from whom such Affected Party
derives its rights) shall use its best efforts (consistent with its internal
policy and legal and regulatory restrictions) to take such steps as would
eliminate or reduce the
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amount of such increased costs; provided that no such steps shall be required to
be taken if, in the reasonable judgment of such Affected Party, such steps would
be materially disadvantageous to such Affected Party.
6.2 Increased Capital. Subject to the provisions of Section 6.4, if the
introduction of or any change in or in the Interpretation of any law or
regulation or the general imposition of any guideline or general request from
any central bank or other governmental authority after the date hereof, affects
or would affect the amount of capital required to be maintained by any Affected
Party after the date hereof, and such Affected Party determines that the amount
of such capital is increased as a result of (i) the existence of such Affected
Party's agreement to make or maintain an investment in the Notes or any interest
therein or (ii) the existence of any agreement by such Affected Party to make or
maintain an investment in the Notes or any interest therein or to fund any such
investment after the date hereof, then, upon written demand by such Affected
Party (or, if such Affected Party is not a Purchaser, by the Purchaser from whom
such Affected Party derives its rights) (with a copy to the Agent), the Issuer
shall direct the Servicer and the Indenture Trustee in writing to pay to the
Agent for the benefit of such Affected Party (as a third party beneficiary, in
the case of an Affected Party that is not also a Purchaser hereunder),
additional amounts, as specified by such Affected Party, sufficient to
compensate such Affected Party in light of such circumstances, to the extent
that such Affected Party reasonably determines such increase in capital to be
allocated to the existence of such Affected Party's agreement described in
clause (i) above or the commitments of such Affected Party described in clause
(ii) above. In determining such amounts, such Affected Party may use any
reasonable averaging and attribution methods, consistent with the averaging and
distribution methods generally used by such Affected Party in determining
amounts of this type. A certificate as to such amounts submitted to the
Servicer, the Issuer and the Agent by such Affected Party (or, if such Affected
Party is not a Purchaser, by the Purchaser from whom such Affected Party derives
its rights), setting forth the calculation thereof in reasonable detail, shall
be prima facie evidence of the amounts so owed. Any Affected Party that is
entitled to compensation for increases in capital as described in this Section
6.2 shall use its best efforts (consistent with its internal policy and legal
and regulatory restrictions) to take such steps as would eliminate or reduce the
amount of such compensation; provided that no such steps shall be required to be
taken if, in the reasonable judgment of such Affected Party, such steps would be
materially disadvantageous to such Affected Party.
6.3 Taxes. (a) Any and all payments and deposits required to be made
hereunder or under the Indenture or the Sale and Servicing Agreement to or for
the benefit of a Purchaser shall be made, to the extent allowed by law, free and
clear of and without deduction for any and all present or future United States
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding taxes, levies, imposts, deductions, charges or
withholdings imposed on, or measured by reference to, the net income of such
Purchaser, franchise taxes imposed on such Purchaser, and taxes (other than
withholding taxes), levies, imposts, deductions, charges or withholdings imposed
on the receipts or gross receipts of such
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Purchaser by any of (i) the United States or any State thereof, (ii) the state
or foreign jurisdiction under the laws of which such Purchaser is organized,
with which it has a present or former connection (other than solely by reason of
this Agreement), or in which it is otherwise doing business, (iii) any political
subdivision thereof or (iv) any state or other jurisdiction (or any political
subdivision thereof) in which any commitment with respect to, or investment in,
the Notes is held or with which any such income or receipts are otherwise
connected (all such excluded items being referred to as "Excluded Taxes" and all
such taxes, levies, imposts, deductions, charges, withholdings and liabilities
other than Excluded Taxes being referred to as "Taxes"). If the Indenture
Trustee, as directed by the Agent, shall be required by law to deduct any Taxes
from or in respect of any sum required to be paid or deposited hereunder or
under any instrument delivered hereunder to or for the benefit of a Purchaser
(A) subject to Section 6.4 below, such sum shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums required to be paid or deposited under this
Section 6.3) the amount received by such Purchaser, or otherwise deposited
hereunder or under such instrument, shall be equal to the sum which would have
been so received or deposited had no such deductions been made, (B) the
Indenture Trustee, as directed by the Agent, shall make such deductions and (C)
the Indenture Trustee, as directed by the Agent, shall pay the full amount of
such deductions to the relevant taxation authority or other authority in
accordance with applicable laws.
(b) Subject to the limitations set forth in subsection 6.3(d) and
Section 6.4 below, the Issuer shall indemnify each Owner for, and shall direct
the Servicer and the Indenture Trustee in writing to pay to the Agent for the
benefit of such Owner, the full amount of Taxes (including any Taxes imposed by
any jurisdiction on amounts payable under this Section 6.3) paid by such Owner
due to the modification of or any change in or in the Interpretation or
administration by any governmental or regulatory agency or body charged with the
Interpretation or administration of any law or regulation relating to Taxes
after the date hereof (including interest) arising therefrom or required to be
paid with respect thereto. Each Owner (or, if such Owner is not a Purchaser, the
Purchaser from whom such Owner derives its rights) agrees to promptly notify the
Servicer, the Agent and the Issuer of any payment of such Taxes made by it and,
if practicable, any request, demand or notice received in respect thereof prior
to such payment. Each Owner shall be entitled to payment of this indemnification
within 30 days from the date such Owner (or, if such Owner is not a Purchaser,
the Purchaser from whom such Owner derives its rights) makes written demand
therefor to the Servicer, the Agent and the Issuer. A certificate as to the
amount of such indemnification submitted to the Issuer and the Agent by such
Owner setting forth in reasonable detail the basis for and the calculation
thereof, shall be prima facie evidence of the amounts so owed.
(c) Within 30 days after the date of any payment of Taxes, the
Issuer will furnish to the Agent the original or a certified copy of a receipt
evidencing payment thereof.
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(d) Each Owner thereof hereby agrees to complete, execute and
deliver to the Indenture Trustee from time to time prior to the date on which
such Owner will be entitled to receive distributions pursuant to the Indenture,
the Sale and Servicing Agreement or this Agreement, Internal Revenue Service
W-8IMY, W-9, W-8EXP, W-8ECI or W-8BEN (or any successor form), as applicable, or
such other forms or certificates as may be required under the laws of any
applicable jurisdiction in order to permit the Indenture Trustee to make
payments to, and deposit funds to or for the account of, such Owner hereunder
and under the Indenture and the Sale and Servicing Agreement without any
deduction or withholding for or on account of any Taxes. Each Owner agrees to
provide, to the extent permitted by law, like additional subsequent duly
executed forms on or before the date that any such form expires or becomes
obsolete, or upon the occurrence of any event requiring an amendment,
resubmission or change in the most recent form previously delivered by it and to
provide such extensions or renewals as may be reasonably requested by the
Issuer. Each Owner further agrees that compliance with this subsection 6.3(d)
(including by reason of Section 8.1 in the case of any assignment, sale or other
transfer of any interest in the Notes) is a condition to the payment of any
amount otherwise due pursuant to subsections 6.3(a) and (b) hereof.
(e) Each Purchaser, as of the date hereof, and each other Owner, as
of the date such Person becomes an Owner entitled to receive distributions
pursuant to this Agreement, the Sale and Servicing Agreement or the Indenture,
hereby represents and warrants to the Issuer that it is not subject to gross-up
or indemnity of Taxes under subsection 6.3(a) or (b) from or in any respect of
any sum required to be paid or deposited under this Agreement, the Indenture,
the Sale and Servicing Agreement or under any instrument delivered pursuant to
any of them to or for the benefit of any Owner.
(f) Any Owner entitled to the payment of any additional amount
pursuant to this Section 6.3 (or, if such Owner is not a Purchaser, the
Purchaser from whom such Owner derives its rights) shall use its best efforts
(consistent with its internal policy and legal and regulatory restrictions) to
take such steps as would eliminate or reduce the amount of such payment;
provided that no such steps shall be required to be taken if, in the reasonable
judgment of such Owner, such steps would be materially disadvantageous to such
Owner.
6.4 Nonrecourse Obligations; Limited Recourse. (a) Notwithstanding any
provision in any other Section of this Agreement to the contrary, the obligation
of the Issuer to pay any amounts payable to the Purchasers or any Owner pursuant
to this Agreement shall be without recourse to the Issuer (or its assignee, if
applicable), the Indenture Trustee or any Affiliate, officer, director, employee
or other representative of any of them and the obligation to pay any amounts
hereunder shall be limited solely to the application of the Trust Estate, to the
extent that such amounts are available therefrom for distribution on any Payment
Date.
(b) Other than in respect of the payment of the Purchase Price or
any Borrowings it elects to fund, notwithstanding any provision in any other
Section of this
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Agreement to the contrary, all payments to be made by a Structured Purchaser
under this Agreement shall be made by such Structured Purchaser solely from
available cash, which shall be limited to collections and other amounts payable
to such Structured Purchaser pursuant to this Agreement, the Sale and Servicing
Agreement and the Indenture and other cash of such Structured Purchaser that, in
each case, is not designated to pay any other amount. The parties to this
Agreement other than each Structured Purchaser (the "Other Parties") hereby
acknowledge that, pursuant to the terms of this Agreement, each Structured
Purchaser is or may be required from time to time to make certain payments to
one or more of the Other Parties, either as compensation for services rendered,
reimbursement for out-of-pocket expenses, indemnification or otherwise. The
Other Parties hereby agree, notwithstanding any provision in any other Section
of this Agreement to the contrary, other than in respect of the payment of the
Purchase Price or any Borrowings it elects to fund, that (i) no Structured
Purchaser shall make any such payment to any Other Party, (ii) no Structured
Purchaser shall have any duty, liability or obligation to make any such payment
to any Other Party, (iii) no such payment shall be due from any Structured
Purchaser and (iv) no Other Party shall have any right to enforce any claim
against any Structured Purchaser in respect of any such payment, in each case at
any time that any commercial paper notes issued by such Structured Purchaser are
outstanding and no Bankruptcy Event (as defined below) has occurred and is
continuing, in each case, unless and to the extent that (x) the making of such
payment by such Structured Purchaser would not render such Structured Purchaser
insolvent and (y) such Structured Purchaser has received funds with respect to
such obligations which may be used to make such payment and such funds are not
required to pay commercial paper notes of such Purchaser when due. As used in
this subsection 6.4(b), "Bankruptcy Event" means (A) the entry against a
Structured Purchaser of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the winding
up or liquidation of its affairs, or the institution of any proceeding against
such Structured Purchaser seeking any of the foregoing, and the continuance of
any such decree or order, or any such proceeding, in each case unstayed and in
effect for a period of 60 consecutive days, or (B) the consent by such
Structured Purchaser to the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to such Structured Purchaser
or the filing by such Structured Purchaser of a petition seeking to adjudicate
it a bankrupt or insolvent or seeking liquidation, winding up, reorganization or
relief of debtors or seeking the entry of any order for relief or the
appointment of a trustee, conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of its affairs, (C) a
Structured Purchaser's admission of its inability to pay its debts as they
become due or (D) the entry into an assignment for the benefit of creditors by
any Structured Purchaser.
SECTION 7. THE AGENT
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7.1 Appointment. Each Purchaser hereby irrevocably designates and
appoints the Agent as the agent of such Purchaser under this Agreement, and each
such Purchaser irrevocably authorizes the Agent, as the agent for such
Purchaser, to take such action on its behalf under the provisions of the Related
Documents and to exercise such powers and perform such duties thereunder as are
expressly delegated to the Agent by the terms of the Related Documents, together
with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Purchaser, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent.
7.2 Delegation of Duties. The Agent may execute any of its duties under
any of the Related Documents by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Agent nor its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (a)
liable to any of the Purchasers for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with any of the other Related
Documents (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Purchasers for any
recitals, statements, representations or warranties made by the Seller, the
Depositor, the Transferor, the Issuer, the Servicer or the Indenture Trustee or
any officer thereof contained in any of the other Related Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, any of the other Related
Documents or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any of the other Related Documents or for
any failure of the Seller, the Depositor, the Transferor, the Issuer, the
Servicer or the Indenture Trustee to perform its obligations thereunder. The
Agent shall not be under any obligation to any Purchaser to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, any of the other Related Documents, or to inspect the
properties, books or records of the Seller, the Depositor, the Transferor, the
Issuer, the Servicer, or the Indenture Trustee.
7.4 Reliance by Agent. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, written statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to the Agent), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under any of
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the Related Documents unless it shall first receive such advice or concurrence
of the Required Owners and the Required Purchasers as it deems appropriate or it
shall first be indemnified to its satisfaction by the Purchasers or by the
Committed Purchasers against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under any of the Related Documents in accordance with a request of the
Required Owners and the Required Purchasers and such request and any action
taken or failure to act pursuant thereto shall be binding upon all present and
future Purchasers.
7.5 Notices. The Agent shall not be deemed to have knowledge or notice
of the occurrence of any breach of this Agreement or the occurrence of any
Default or any Event of Default unless the Agent has received notice from the
Issuer, the Depositor, the Transferor, the Seller, the Servicer, the Indenture
Trustee or any Purchaser referring to this Agreement, describing such event. In
the event that the Agent receives such a notice, the Agent promptly shall give
notice thereof to the Purchasers. The Agent shall take such action with respect
to such event as shall be reasonably directed by the Required Owners and the
Required Purchasers; provided that unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such event as
it shall deem advisable in the best interests of the Purchasers.
7.6 Non-Reliance on Agent and Other Purchasers. Each Purchaser
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereafter
taken, including any review of the affairs of the Seller, the Depositor, the
Transferor, the Issuer, the Servicer or the Indenture Trustee shall be deemed to
constitute any representation or warranty by the Agent to any Purchaser. Each
Purchaser represents to the Agent that it has, independently and without
reliance upon the Agent or any other Purchaser, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Indenture Trustee, the Seller, the
Depositor, the Transferor, the Issuer and the Servicer and made its own decision
to purchase its interest in the Notes hereunder and enter into this Agreement.
Each Purchaser also represents that it will, independently and without reliance
upon the Agent or any other Purchaser, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis, appraisals and decisions in taking or not taking action under any of
the Related Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Indenture Trustee, the Seller, the
Depositor, the Transferor, the Issuer and the Servicer. Except, in the case of
the Agent, for notices, reports and other documents received by the Agent under
Section 5 hereof, the Agent shall not have any duty or responsibility to provide
any Purchaser with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Indenture Trustee, the Seller, the Depositor, the
Transferor,
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the Issuer or the Servicer which may come into the possession of the Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
7.7 Indemnification. The Committed Purchasers agree to indemnify the
Agent in its capacity as such (without limiting the obligation (if any) of the
Seller, the Depositor, the Transferor, the Issuer, or the Servicer to reimburse
the Agent for any such amounts), ratably according to their respective
Commitment Percentages (or, if the Commitments have terminated, Percentage
Interests), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including at any time following
the payment of the obligations under this Agreement, including the Class A
Outstanding Amount of the Notes) be imposed on, incurred by or asserted against
the Agent in any way relating to or arising out of this Agreement, or any
documents contemplated by or referred to herein or the transactions contemplated
hereby or any action taken or omitted by the Agent under or in connection with
any of the foregoing; provided that no Purchaser shall be liable for the payment
of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of the Agent
resulting from its own gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the obligations under this
Agreement, including the principal of the Notes.
7.8 Agent in Its Individual Capacities. The Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Indenture Trustee, the Seller, the Servicer, the Owner
Trustee, the Depositor, the Transferor and the Issuer and their respective
Affiliates and other associated Persons as though the Agent was not the agent
hereunder. Each Purchaser acknowledges that Credit Suisse First Boston may act
(i) as administrator and agent for one or more Structured Purchasers and in such
capacity acts and may continue to act on behalf of each such Structured
Purchaser in connection with its business and (ii) as the agent for certain
financial institutions under the liquidity and credit enhancement agreements
relating to this Agreement to which any such Structured Purchaser is party and
in various other capacities relating to the business of any such Structured
Purchaser under various agreements. Credit Suisse First Boston in its capacity
as the Agent shall not, by virtue of its acting in any such other capacities, be
deemed to have duties or responsibilities hereunder or be held to a standard of
care in connection with the performance of its duties as the Agent other than as
expressly provided in this Agreement. Credit Suisse First Boston may act as the
Agent without regard to and without additional duties or liabilities arising
from its role as such administrator or agent or arising from its acting in any
such other capacity.
7.9 Successor Agent. The Agent may resign as Agent upon ten days'
notice to the Purchasers, the Indenture Trustee, the Issuer, the Depositor, the
Transferor, the Seller and the Servicer with such resignation becoming effective
upon a successor agent succeeding to the rights, powers and duties of the Agent
pursuant to this subsection 7.9(a). If the Agent shall resign as Agent under
this Agreement, then the Required Purchasers and the Required Owners
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shall appoint from among the Committed Purchasers a successor agent for the
Purchasers. The successor agent shall succeed to the rights, powers and duties
of the Agent, and the term "Agent" shall mean such successor agent effective
upon its appointment, and the former Agent's rights, powers and duties as Agent
shall be terminated, without any other or further act or deed on the part of
such former Agent or any of the parties to this Agreement. After the retiring
Agent's resignation as Agent, the provisions of this Section 7 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. The retiring Agent shall transfer any Notes issued
in its name to the successor Agent. The successor Agent shall give the Indenture
Trustee, the Issuer, the Depositor, the Transferor, the Seller and the Servicer
written notice of its appointment as Agent.
SECTION 8. SECURITIES LAWS; TRANSFERS
8.1 Transfers of Notes. (a) Each of the Agent and the Owners agrees
that any interest in the Notes purchased or otherwise acquired by it will be
acquired for investment only and not with a view to any distribution thereof,
and that it will not offer to sell or otherwise dispose of any Note acquired by
it (or any interest therein) in violation of any of the registration
requirements of the Securities Act or the registration or qualification
requirements of any applicable state or other securities laws. Each of the Agent
and the Owners acknowledges that it has no right to require the Issuer to
register, under the Securities Act or any other securities law, the Notes (or
any interest therein) acquired by it pursuant to this Agreement, any Joinder
Supplement or any Transfer Supplement. Each of the Agent and the Owners hereby
confirms and agrees that in connection with any transfer or syndication by it of
an interest in the Notes, it has not engaged and will not engage in a general
solicitation or general advertising including advertisements, articles, notices
or other communications published in any newspaper, magazine or similar media or
broadcast over radio or television, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. Each
Purchaser which executes a Joinder Agreement agrees that it will execute and
deliver to the Issuer, the Seller, the Servicer, the Depositor, the Transferor,
the Indenture Trustee and the Agent on or before the effective date of its
Joinder Agreement a letter in the form attached hereto as Exhibit A (an
"Investment Letter") with respect to the purchase by such Purchaser of an
interest in the Notes.
(b) Each initial purchaser of a Note or any interest therein and
any Assignee thereof or Participant therein shall certify to the Issuer, the
Seller, the Servicer, the Depositor, the Transferor, the Indenture Trustee and
the Agent that it is either (A)(i) a citizen or resident of the United States,
(ii) a corporation or partnership (or any other entity treated as a corporation
or a partnership for federal income tax purposes) organized in or under the laws
of the United States or any political subdivision thereof which, if such entity
is a tax-exempt entity, recognizes that payments with respect to the Notes may
constitute unrelated business taxable income or (iii) a person not described in
(i) or (ii) whose income from the Notes is and will be effectively connected
with the conduct of a trade or business within the United States (within the
meaning of
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the Code) and whose ownership of any interest in a Note will not result in any
withholding obligation with respect to any payments with respect to the Notes by
any Person and who will furnish to the Agent, the Seller, the Servicer and the
Indenture Trustee, and to the Owner making the Transfer a properly executed U.S.
Internal Revenue Service Form W-8ECI or W-8BEN (or any successor form) (and to
agree (to the extent legally able) to provide a new Form W-8ECI or W-8BEN (or
any successor form) upon the expiration or obsolescence of any previously
delivered form and comparable statements in accordance with applicable United
States laws), (B) an estate the income of which is includible in gross income
for United States federal income tax purposes or (C) a trust if a court within
the United States is able to exercise primary supervision over the
administration of such trust and one or more United States fiduciaries have the
authority to control all substantial decisions of the trust.
(c) Any sale, transfer, assignment, participation, pledge,
hypothecation or other disposition (a "Transfer") of a Note or any interest
therein may be made only in accordance with this Section 8.1. Any Transfer of a
Note, an interest in a Note, a Commitment or any Noncommitted Purchaser
Percentage shall be in respect of (i) in the case of a Committed Purchaser, at
least $5,000,000 in the aggregate, which may be composed of (A) outstanding
principal under the Notes or (B) to the extent in excess of the outstanding
principal subject to such Transfer, its Commitment hereunder, or (ii) in the
case of a Noncommitted Purchaser, at least $5,000,000 in the aggregate, which
may be composed of (A) outstanding principal under the Notes or (B) to the
extent in excess of the outstanding principal subject to such Transfer, the
product of the Noncommitted Purchaser Percentage subject to such Transfer times
the aggregate Commitments hereunder. Any Transfer of an interest in a Note
otherwise permitted by this Section 8.1 will be permitted only if it consists of
a pro rata percentage interest in all payments made with respect to the
Purchaser's beneficial interest in such Note. No Note or any interest therein
may be Transferred by Assignment or Participation to any Person (each, a
"Transferee") unless prior to the transfer the Transferee shall have executed
and delivered to the Agent and the Issuer an Investment Letter.
Each of the Issuer, the Depositor, the Transferor, the Seller
and the Servicer authorizes each Purchaser to disclose to any Transferee and
Support Party and any prospective Transferee or Support Party any and all
financial information in the Purchaser's possession concerning the Seller, the
Servicer, the Depositor, the Transferor and the Issuer which has been delivered
to the Agent or such Purchaser pursuant to the Related Documents (including
information obtained pursuant to rights of inspection granted hereunder) or
which has been delivered to such Purchaser by or on behalf of the Seller, the
Issuer, the Depositor, the Transferor or the Servicer in connection with such
Purchaser's credit evaluation of the Seller, the Issuer, the Depositor, the
Transferor or the Servicer prior to becoming a party to, or purchasing an
interest in this Agreement or the Notes, provided that each such Transferee,
prospective Transferee and Support Party agrees to maintain the confidentiality
of such information pursuant to the following paragraph.
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The Agent and each Purchaser, severally and with respect to
itself only, covenants and agrees that any information obtained by the Agent or
such Purchaser pursuant to, or otherwise in connection with, this Agreement or
the other Related Documents shall be held in confidence (it being understood
that documents provided to the Agent hereunder may in all cases be distributed
by the Agent to the Purchasers) except that the Agent or such Purchaser may
disclose such information (i) to its officers, directors, employees, agents,
counsel, accountants, auditors, advisors or representatives who have an
obligation to maintain the confidentiality of such information, (ii) to the
extent such information has become available to the public other than as a
result of a disclosure by or through the Agent or such Purchaser, (iii) to the
extent such information was available to the Agent or such Purchaser on a
nonconfidential basis prior to its disclosure to the Agent or such Purchaser
hereunder, (iv) with the consent of the Servicer, (v) to the extent permitted by
the preceding paragraph, (vi) to the extent the Agent or such Purchaser should
be (A) required in connection with any legal or regulatory proceeding or (B)
requested by any Governmental Authority to disclose such information or (vii) in
the case of any Purchaser that is a Structured Purchaser, to rating agencies,
placement agents and providers of liquidity and credit support who agree to hold
such information in confidence; provided, that, in the case of clause (vi), the
Agent or such Purchaser, as the case may be, will (unless otherwise prohibited
by law or in connection with regular regulatory reviews) notify the Servicer of
its intention to make any such disclosure as early as practicable prior to
making such disclosure and cooperate with the Servicer in connection with any
action to obtain a protective order with respect to such disclosure.
(d) Each Purchaser may, in accordance with applicable law, at any
time grant participations in all or part of its Commitment or its interest in
the Notes, including the payments due to it under this Agreement and the
Indenture (each, a "Participation"), to any Person (each, a "Participant");
provided, however, that no Participation shall be granted to any Person unless
and until the Agent shall have consented thereto and the conditions to Transfer
specified in this Agreement, including in this subsection 8.1(d), shall have
been satisfied and that such Participation consists of a pro rata percentage
interest in all payments made with respect to such Purchaser's beneficial
interest (if any) in the Notes. In connection with any such Participation, the
Agent shall maintain a register of each Participant and the amount of each
Participation. Each Purchaser hereby acknowledges and agrees that (A) any such
Participation will not alter or affect such Purchaser's direct obligations
hereunder, and (B) neither the Indenture Trustee, the Issuer, the Depositor, the
Transferor, the Seller nor the Servicer shall have any obligation to have any
communication or relationship with any Participant. No Participant shall be
entitled to Transfer all or any portion of its Participation, without the prior
written consent of the Agent. Each Purchaser shall give the Agent notice of the
consummation of any sale by it of a Participation and the Agent (upon receipt of
notice from the related Purchaser) shall promptly notify the Issuer, the Seller,
the Depositor, the Servicer and the Indenture Trustee. No Participant shall have
the right to approve any amendment or waiver of the terms of this Agreement
except with respect to those matters set forth in clauses (i) and (ii) of the
proviso to Section 9.1.
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(e) Each Purchaser may, with the consent of the Agent and in
accordance with applicable law, sell or assign (each, an "Assignment"), to any
Person (each, an "Assignee") all or any part of its Commitment or its interest
in the Notes and its rights and obligations under this Agreement and the
Indenture pursuant to an agreement substantially in the form attached hereto as
Exhibit C hereto (a "Transfer Supplement"), executed by such Assignee and the
Purchaser and delivered to the Agent for its acceptance and consent; provided,
however, that no such assignment or sale shall be effective unless and until the
conditions to Transfer specified in this Agreement, including in this subsection
8.1(d), shall have been satisfied. From and after the effective date determined
pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a
party hereto and, to the extent provided in such Transfer Supplement, have the
rights and obligations of a Purchaser hereunder as set forth therein and (y) the
transferor Purchaser shall, to the extent provided in such Transfer Supplement,
be released from its Commitment and other obligations under this Agreement;
provided, however, that after giving effect to each such Assignment, the
obligations released as to any such Purchaser shall have been assumed by an
Assignee or Assignees. Such Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Assignee and the resulting adjustment of Percentage Interests,
Committed Purchaser Percentages, Noncommitted Purchaser Percentages, Liquidity
Percentages or Commitment Percentages arising from the Assignment. Upon its
receipt and acceptance of a duly executed Transfer Supplement, the Agent shall
on the effective date determined pursuant thereto give notice of such acceptance
to the Issuer, the Seller, the Depositor, the Servicer and the Indenture
Trustee.
Upon instruction to register a transfer of a Purchaser's
beneficial interest in the Notes (or portion thereof) and surrender for
registration of transfer such Purchaser's Note(s) (if applicable) and delivery
to the Issuer, the Seller, the Servicer, the Depositor and the Indenture Trustee
of an Investment Letter, executed by the registered owner (and the beneficial
owner if it is a Person other than the registered owner), and receipt by the
Indenture Trustee of a copy of the duly executed related Transfer Supplement and
such other documents as may be required under this Agreement, such beneficial
interest in the Notes (or portion thereof) shall be transferred in the records
of the Agent and, if requested by the Assignee, new Notes shall be issued to the
Assignee and, if applicable, the transferor Purchaser in amounts reflecting such
Transfer as provided in the Indenture. Such Transfers of Notes (and interests
therein) shall be subject to this Section 8.1 in lieu of any regulations which
may be prescribed under Section 2.10 of the Indenture. Successive registrations
of Transfers as aforesaid may be made from time to time as desired, and each
such registration of a transfer to a new registered owner shall be noted on the
Agent's records.
(f) Each Purchaser may pledge its interest in the Notes to any
Federal Reserve Bank as collateral in accordance with applicable law.
-45-
(g) Any Purchaser shall have the option to change its Investing
Office, provided that no increased costs or other additional amounts shall be
payable as a result of any such change.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. This Agreement may not be amended,
supplemented or modified nor may any provision hereof be waived except in
accordance with the provisions of this Section 9.1. With the written consent of
the Required Owners and the Required Purchasers, the Agent, the Seller, the
Servicer, the Depositor, the Transferor and the Issuer may, from time to time,
enter into written amendments, supplements, waivers or modifications hereto for
the purpose of adding any provisions to this Agreement or changing in any manner
the rights of any party hereto or waiving, on such terms and conditions as may
be specified in such instrument, any of the requirements of this Agreement;
provided, however, that no such amendment, supplement, waiver or modification
shall (i) reduce the amount of or extend the maturity of any Note or reduce the
rate or extend the time of payment of interest thereon, or reduce or alter the
timing of any other amount payable to any Purchaser hereunder or under the
Indenture or the Sale and Servicing Agreement, in each case without the consent
of the Purchasers affected thereby, (ii) amend, modify or waive any provision of
this Section 9.1 without the written consent of all Purchasers, or reduce the
percentage specified in the definition of Required Owners or Required Purchasers
without the written consent of all Required Owners or Required Purchasers,
respectively, or (iii) amend, modify or waive any provision of Section 7 of this
Agreement without the written consent of the Agent. Any waiver of any provision
of this Agreement shall be limited to the provisions specifically set forth
therein for the period of time set forth therein and shall not be construed to
be a waiver of any other provision of this Agreement.
The Agent may cast any vote or give any direction under the
Indenture on behalf of the Noteholders if it has been directed to do so by (i)
the Required Owners and (ii) the Required Purchasers.
9.2 Notices. (a) All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or, in the case of mail or
telecopy notice, when received, addressed as follows or, with respect to a
Purchaser, as set forth in its respective Joinder Supplement or Transfer
Supplement, or to such other address as may be hereafter notified by the
respective parties hereto:
The Issuer: OMI Note Trust 2001-A
c/o Wilmington Trust Company
ββββββ Square North
ββββ β. ββββββ ββββββ
-ββ-
ββββββββββ, ββ βββββ
Attention: Corporate Trust Administration/
OMI Note Trust 2001-A
Telecopier No.: (βββ) βββ-ββββ
OAC Oakwood Acceptance Corporation
ββββ βββββββ ββββ
ββββββββββ, ββ βββββ-ββββ
Attention: Treasurer
Telecopier No.: (βββ) βββ-ββββ
The Depositor Oak Leaf Holdings, LLC
ββββ βββββββ ββββ
ββββββββββ, ββ βββββ-ββββ
Attention: Treasurer
Telecopier No.: (βββ) βββ-ββββ
The Indenture Trustee: The Chase Manhattan Bank
βββ ββββ ββββ ββββββ
βββ ββββ, ββ βββββ
Attention: Institutional Trust Services
Telecopier No.: (212)
The Transferor: Ginkgo Corporation
c/o Lord Securities
β ββββ ββββββ
βββ ββββ, ββ βββββ
Attention:
Telecopier No.: (212)
The Agent Credit Suisse First Boston, New York Branch
Eleven βββββββ ββββββ
βββ ββββ, βββ ββββ βββββ
-47-
Attention: Asset Finance Department
Telecopier No.: (βββ) βββ-ββββ
(b) All payments to be made to the Agent or any Purchaser hereunder
shall be made in United States dollars and in immediately available funds not
later than 2:30 p.m. New York City time on the date payment is due, and, unless
otherwise specifically provided herein, shall be made to the Agent, for the
account of one or more of the Purchasers or for its own account, as the case may
be. Unless otherwise directed by the Agent, all such payments shall be made to
the following account:
Bank of New York, NY
SWIFT: [Omitted]
ABA# [Omitted]
A/C# [Omitted]
A/C Name: [Omitted]
Ref. Oakwood
with telephone notice (including federal wire number) to the Asset Finance
Department of Credit Suisse First Boston (212-325-9076).
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Purchaser, any right, remedy,
power or privilege under any of the Related Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any of the Related Documents preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges provided in the Related Documents
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Seller, the Servicer, the Depositor, the Transferor,
the Issuer, the Agent, the Purchasers, any Assignee, any Participant and their
respective successors and assigns, except that the Seller, the Servicer, the
Depositor, the Transferor and the Issuer may not assign or transfer any of their
respective rights or obligations under this Agreement except as provided herein
and in the Indenture, without the prior written consent of the Required Owners
and the Required Purchasers and the Purchasers, Agent, Assignee and Participants
may not assign or transfer any of their respective rights or obligations except
as provided herein..
9.5 Successors to Servicer. (a) In the event that a change in Servicer
occurs under Section 6.2 of the Sale and Servicing Agreement, (i) from and after
the effective date of such transfer, the successor Servicer shall be the
successor in all respects to the Servicer and shall be responsible for the
performance of all functions to be performed by the Servicer from and after such
date and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof, and
all references in this Agreement
-48-
to the Servicer shall be deemed to refer to the successor Servicer, and (ii) as
of the date of such transfer, the successor Servicer shall be deemed to have
made with respect to itself the representations and warranties made in Section
4.2 (in the case of subsection 4.2(a) with appropriate factual changes);
provided, however, that the references to the Servicer contained in Section 5.1
of this Agreement shall be deemed to refer to the Servicer with respect to
responsibilities, duties and liabilities arising out of an act or acts, or
omission, or an event or events giving rise to such responsibilities, duties and
liabilities and occurring during such time that the Servicer was Servicer under
this Agreement and shall be deemed to refer to the Successor Servicer with
respect to responsibilities, duties and liabilities arising out of an act or
acts, or omission, or an event or events giving rise to such responsibilities,
duties and liabilities and occurring during such time that the Successor
Servicer acts as Servicer under this Agreement; provided, however, to the extent
that an obligation to indemnify the Purchasers under Section 2.4 arises as a
result of any act or failure to act of any successor Servicer in the performance
of obligations under the Sale and Servicing Agreement, such indemnification
obligation shall be of the successor Servicer and not its predecessor. Upon a
transfer to a successor Servicer, such successor Servicer shall furnish to the
Agent copies of its audited annual financial statements for each of the three
preceding fiscal years or if the Indenture Trustee or any other banking
institution becomes the successor Servicer, such successor Servicer shall
provide, in lieu of the audited financial statements required in the immediately
preceding clause, complete and correct copies of the publicly available portions
of its Consolidated Reports of Condition and Income as submitted to the FDIC for
the two most recent year end periods.
(b) In the event that any Person becomes the successor to the Seller
pursuant to Section 5.2 of the Sale and Servicing Agreement, from and after the
effective date of such transfer, such successor to the Seller shall be the
successor in all respects to the Seller and shall be responsible for the
performance of all functions to be performed by the Seller from and after such
date, except as provided in the Sale and Servicing Agreement, and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Seller by the terms and provisions hereof, and all references in
this Agreement to the Seller shall be deemed to refer to the successor to the
Seller; provided, however, that the references to the Seller contained in
Sections 2.4 and 5.1 of this Agreement shall be deemed to refer to OAC with
respect to responsibilities, duties and liabilities arising out of an act or
acts, or omission, or an event or events giving rise to such responsibilities,
duties and liabilities and occurring during such time that OAC was Seller under
this Agreement and shall be deemed to refer to the successor to OAC as Seller
with respect to responsibilities, duties and liabilities arising out of an act
or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during such time that the
successor to Seller acts as Seller under this Agreement.
9.6 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
-49-
9.7 Severability. Any provisions of this Agreement which are prohibited
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 shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
9.8 Integration. This Agreement and the Fee Letter represent the
agreement of the Agent, the Seller, the Depositor, the Transferor, the Issuer,
the Servicer and the Purchasers with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Purchasers or the Agent relative to subject matter hereof not expressly set
forth or referred to herein or therein.
9.9 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.10 Termination. This Agreement shall remain in full force and effect
until the later to occur of (a) payment in full of the principal of and interest
on the Notes and all other amounts payable to the Purchasers or the Agent
hereunder and the termination of all Commitments and (b) the Facility
Termination Date; provided, however, that the provisions of Sections 2.4, 6.1,
6.2, 7.7, 9.11, 9.13 and 9.14 shall survive termination of this Agreement and
any amounts payable to the Agent, Purchasers or any Affected Party thereunder
shall remain payable thereto.
9.11 Limited Recourse; No Proceedings. (a) The obligations of the
Issuer, the Transferor and the Depositor under this Agreement are solely the
obligations of the Issuer, the Transferor and the Depositor, as applicable. No
recourse shall be had for the payment of any fee or other obligation or claim
arising out of or relating to this Agreement or any other agreement, instrument,
document or certificate executed and delivered or issued by the Issuer, the
Transferor and the Depositor, or any officer of any of them in connection
therewith, against any partner, member, stockholder, employee, officer, director
or incorporator of the Issuer, the Transferor and the Depositor. With respect to
obligations of the Issuer, neither the Agent nor any Purchaser shall look to any
property or assets of the Issuer, other than to the Trust Estate. Each Purchaser
and the Agent hereby agrees that to the extent such funds are insufficient or
unavailable to pay any amounts owing to it by the Issuer pursuant to this
Agreement, prior to the commencement of a bankruptcy or insolvency proceeding by
or against the Issuer, it shall not constitute a claim against the Issuer. Each
of the Issuer, the Depositor, the Transferor, the Seller, the Servicer, the
Agent and each Purchaser agrees that it shall not institute or join against the
Depositor, the Transferor or the Issuer any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or similar proceeding under
any federal or state bankruptcy law, for one year and a day after the
termination of the Indenture. Nothing in this paragraph shall limit or otherwise
affect the liability of the Servicer and the Seller with respect to any amounts
owing by the
-50-
Servicer or the Seller, respectively, hereunder or the right of the Agent or any
Purchaser to enforce such liability against the Servicer or the Seller,
respectively, or any of its respective assets.
(b) Each of the Issuer, the Depositor, the Transferor, the Seller,
the Servicer, the Agent and each Purchaser hereby agrees that it shall not
institute or join against any Structured Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, for one year
and a day after the latest maturing commercial paper note, medium term note or
other debt security issued by such Structured Purchaser is paid.
9.12 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the purchase of the Notes hereunder.
9.13 Submission to Jurisdiction; Waivers. EACH OF THE SELLER, THE
ISSUER, THE DEPOSITOR, THE SERVICER, THE TRANSFEROR, THE AGENT AND EACH
PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT TO
WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO
THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK SITTING IN MANHATTAN AND THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY
BE BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION
OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY
THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID,
TO SUCH PARTY AT ITS ADDRESS SET
-51-
FORTH IN SECTION 9.2 OR AT SUCH OTHER ADDRESS OF
WHICH THE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT
TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO βββ IN
ANY OTHER JURISDICTION.
9.14 WAIVERS OF JURY TRIAL. EACH OF THE SELLER, THE SERVICER, THE
ISSUER, THE DEPOSITOR, THE TRANSFEROR, THE AGENT AND THE PURCHASERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR
INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN.
9.15 Limitation of Liability of Owner Trustee. Notwithstanding anything
contained herein or in any other Related Document to the contrary, it is
expressly understood and agreed by the parties hereto that (a) this Agreement is
executed and delivered by Wilmington Trust Company, not individually or
personally but solely as Owner Trustee, in the exercise of the powers and
authority conferred and vested in it under the Trust Agreement, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking or
agreement by Wilmington Trust Company but is made and intended for the purpose
for binding only the Issuer and the Trust Estate, and (c) under no circumstances
shall Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Agreement or any other related documents.
-52-
IN WITNESS WHEREOF, the parties hereto have caused this Class
A Note Purchase Agreement to be duly executed by their respective officers as of
the day and year first above written.
OMI NOTE TRUST 2001-A
By Wilmington Trust Company,
not in its individual capacity, but solely as
Owner Trustee
By: /s/ βββββ β. ββββββ
-----------------------------------------
Name: βββββ β. ββββββ
Title: Vice President
OAKWOOD ACCEPTANCE CORPORATION,
as Seller and Servicer
By: /s/ βββββββ β. ββββ
-----------------------------------------
Name: βββββββ β. ββββ
Title:
GINKGO CORPORATION,
as Transferor
By: /s/ ββββββ β. ββββββββββ
--------------------------------------------------
Name: ββββββ β. ββββββββββ
Title: Vice President
OAK LEAF HOLDINGS, LLC,
as Depositor
By: /s/ βββββββ β. ββββ
-----------------------------------------
Name: βββββββ β. ββββ
Title: Assistant Secretary
[SIGNATURE PAGE TO NOTE PURCHASE AGREEMENT]
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Agent
By: /s/ βββββββ βββββ
--------------------------------------------------
Name: βββββββ βββββ
Title: Vice President
By: /s/ βββββββ β. ββββββ
--------------------------------------------------
Name: βββββββ β. ββββββ
Title: Associate
[SIGNATURE PAGE TO NOTE PURCHASE AGREEMENT]
EXHIBIT A
FORM OF INVESTMENT LETTER
-------------------------
[Date]
OMI Note Trust 2001-A
c/o Wilmington Trust Company
ββββββ Square North
ββββ β. ββββββ ββββββ
ββββββββββ, ββ βββββ
Oak Leaf Holdings, LLC
ββββ βββββββ ββββ
ββββββββββ, ββ βββββ-ββββ
Oakwood Acceptance Corporation
ββββ βββββββ ββββ
ββββββββββ, ββ βββββ-ββββ
The Chase Manhattan Bank, as Indenture Trustee
βββ ββββ ββββ ββββββ
βββ ββββ, ββ βββββ
Ginkgo Corporation
c/o Lord Securities
β ββββ ββββββ
βββ ββββ, ββ βββββ
Credit Suisse First Boston, New York Branch
Eleven βββββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Re OMI Note Trust 2001-A
Asset Backed Notes, Series 2001-A
---------------------------------
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the
undersigned (the "Acquiror") pursuant to subsection 8.1[(a)][(c)] of the Class A
Note Purchase Agreement dated as of February 9, 2001 (as in effect, the "Class A
Note Purchase Agreement"), among OMI Note
-1-
Trust 2001-A, as Issuer, Oakwood Acceptance Corporation, as Seller and Servicer,
Oak Leaf Holdings, LLC, as Depositor, Ginkgo Corporation, as Transferor, the
Purchasers parties thereto and Credit Suisse First Boston, New York Branch, as
Agent. Capitalized terms used herein without definition shall have the meanings
set forth in the Class A Note Purchase Agreement. The Acquiror represents to and
agrees with the Issuer as follows:
(a) The Acquiror is authorized [to enter into the Class A Note
Purchase Agreement and to perform its obligations thereunder and to consummate
the transactions contemplated thereby] [to purchase a Participation in
obligations under the Class A Note Purchase Agreement].
(b) The Acquiror has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its
investment with respect to the Notes and is able to bear the economic risk of
such investment. The Acquiror has been afforded the opportunity to ask such
questions as it deems necessary to make an investment decision, and has received
all information it has requested in connection with making such investment
decision. The Acquiror has, independently and without reliance upon the Agent or
any Purchaser, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Issuer, the Depositor, the Transferor, the Seller and the Servicer and made its
own decision to make its investment with respect to the Notes, and will,
independently and without reliance upon the Agent or any Purchaser, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own analysis, appraisals and decisions in taking or not
taking action, if any, that it may take under the Class A Note Purchase
Agreement, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of the Issuer, the Seller, the Depositor, the Transferor and
the Servicer.
(c) The Acquiror is an "accredited investor ,"as defined in Rule
501, promulgated by the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), and (except
as otherwise agreed to by the Issuer in its sole discretion) is a "qualified
institutional buyer" (within the meaning of Rule 144A thereunder) and is making
its investment with respect to the Notes for its own account for investment
purposes. The Acquiror understands that the offering and sale of the Notes has
not been and will not be registered under the Securities Act and has not and
will not be registered or qualified under any applicable "Blue Sky" or other
securities law, and that the offering and sale of the Note has not been reviewed
by, passed on or submitted to any federal or state agency or commission,
securities exchange or other regulatory body.
(d) The Acquiror is "a qualified purchaser" (as defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act")), a
company each of whose beneficial owners is a qualified purchaser, a
"knowledgeable employee" with respect to the
-2-
Issuer (within the meaning of Rule 3c-5 and the Investment Company Act) or a
company owned exclusively by knowledgeable employees.
(e) The Acquiror is not an employee benefit plan subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
section 4975 of the Internal Revenue Code of 1986, as amended (the "Code") (each
such plan, an "Employee Plan"), an entity whose underlying assets include the
assets of any Employee Plan, or a governmental plan that is subject to any
federal, state or local law which is substantially similar to the provisions of
Section 406 of ERISA or Section 4975 of the Code and the Acquiror's purchase,
holding and disposition of the Notes will not result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code (or, in the case of a
governmental plan, any substantially similar federal, state or local law) for
which an exemption is not available.
(f) The Acquiror is acquiring an interest in Notes without a view
to any distribution, resale or other transfer thereof. The Acquiror will not
resell or otherwise transfer any interest or participation in the Notes, except
in accordance with Section 8.1 of the Class A Note Purchase Agreement and (i) in
a transaction exempt from the registration requirements of the Securities Act of
1933, as amended, and applicable state securities or "blue sky" laws; (ii) to
the Issuer or any affiliate of the Issuer; or (iii) to a person who the Acquiror
reasonably believes is a qualified institutional buyer (within the meaning
thereof in Rule 144A under the Securities Act) that is aware that the resale or
other transfer is being made in reliance upon Rule 144A. In connection
therewith, the Acquiror hereby agrees that it will not resell or otherwise
transfer any interest in the Notes unless the purchaser thereof provides to the
addressee hereof a letter substantially in the form hereof.
(g) The Acquiror hereby confirms and agrees that in connection with
any transfer or syndication by it of an interest in the Notes, it shall not
engage in a general solicitation or general advertising including
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(h) This Investment Letter has been duly executed and delivered by
and constitutes the legal, valid and binding obligation of the Acquiror,
enforceable against the Acquiror in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and general principles of equity.
-3-
Very truly yours,
[NAME OF ACQUIROR]
By:___________________________
Name:
Title:
-4-
EXHIBIT B
---------
FORM OF JOINDER SUPPLEMENT
JOINDER SUPPLEMENT, dated as of the date set forth in Item 1
of Schedule I hereto, among OMI Note Trust 2001-A (the "Issuer"), Oakwood
Acceptance Corporation, as Seller (in such capacity, the "Seller") [if Oakwood
is the Servicer:] and Servicer (in such capacity, the "Servicer"), Oak Leaf
Holdings, LLC, as Depositor, Ginkgo Corporation, as Transferor, the Purchaser
set forth in Item 2 of Schedule I hereto (the "Additional Purchaser"), and
Credit Suisse First Boston, New York Branch, as Agent for the Purchasers under,
and as defined in, the Class A Note Purchase Agreement described below (in such
capacity, the "Agent").
W I T N E S S E T H
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 2.2(c) of the Class A Note Purchase Agreement, dated
as of February 9, 2001, among OMI Note Trust 2001-A, as Issuer, Oakwood
Acceptance Corporation, as Seller and Servicer, Oak Leaf Holdings, LLC, as
Depositor, Ginkgo Corporation, as Transferor, the Purchasers parties thereto,
and the Agent (as from time to time amended, supplemented or otherwise modified
in accordance with the terms thereof, the "Class A Note Purchase Agreement";
unless otherwise defined herein, terms defined in the Class A Note Purchase
Agreement are used herein as therein defined); and
WHEREAS, the Additional Purchaser (if it is not already a
Purchaser party to the Class A Note Purchase Agreement) wishes to become a
Purchaser party to the Class A Note Purchase Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Agent of five counterparts of this
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Additional Purchaser, the
Issuer and the Agent, the Agent will transmit to the Servicer, the Issuer, the
Seller, the Depositor, the Indenture Trustee and the Additional Purchaser a
Joinder Effective Notice, substantially in the form of Schedule III to this
Supplement (a "Joinder Effective Notice"). Such Joinder Effective Notice shall
be executed by the Agent and shall set forth, inter alia, the date on which the
transfer effected by this Supplement shall become effective (the "Joinder
Effective Date"). From and after the Joinder Effective Date, the Additional
Purchaser shall be a Purchaser party to the Class A Note Purchase Agreement for
all purposes thereof and shall be a Noncommitted Purchaser or Committed
Purchaser, as specified on such Schedule II, and, if applicable, a Liquidity
Provider as set forth in Schedule II hereto,
-1-
having an initial Noncommitted Purchaser Percentage or Commitment Percentage, as
applicable, and a Liquidity Percentage, if applicable, and a Commitment, if
applicable, as set forth in such Schedule II. If the Additional Purchaser is a
Noncommitted Purchaser, then (i) such Schedule II identifies its Liquidity
Providers and (ii) each such Liquidity Provider has executed and delivered (or
is concurrently herewith executing and delivering) its own Joinder Supplement
with respect to such Additional Purchaser.
(b) Concurrently with the execution and delivery hereof, the
Additional Purchaser will deliver to the Issuer, the Seller, the Servicer, the
Agent, the Transferor, the Depositor and the Indenture Trustee an executed
Investment Letter in the form of Exhibit A to the Class A Note Purchase
Agreement.
(c) Each of the parties to this Supplement agrees and acknowledges
that at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Supplement.
(d) By executing and delivering this Supplement, the Additional
Purchaser confirms to and agrees with the Agent and the Purchaser as follows:
(i) neither the Agent nor any other Purchaser makes any representation or
warranty or assumes any responsibility with respect to any statements,
warranties or representations made in or in connection with the Class A Note
Purchase Agreement (other then representations or warranties made by such
respective parties) or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Class A Note Purchase Agreement or any
other instrument or document furnished pursuant thereto, or with respect to the
financial condition of the Seller, the Servicer, the Depositor, the Transferor,
the Issuer or the Indenture Trustee, or the performance or observance by the
Seller, the Servicer, the Depositor, the Transferor, the Issuer or the Indenture
Trustee of any of their respective obligations under the Class A Note Purchase
Agreement, the Sale and Servicing Agreement or the Indenture or any other
instrument or document furnished pursuant hereto; (ii) the Additional Purchaser
confirms that it has received a copy of such documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Supplement; (iii) the Additional Purchaser will, independently and without
reliance upon the Agent or any other Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Class A Note Purchase
Agreement; (iv) the Additional Purchaser appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under the
Class A Note Purchase Agreement, the Sale and Servicing Agreement and the
Indenture as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, all in accordance with Section 7 of
the Class A Note Purchase Agreement; and (vi) the Additional Purchaser agrees
(for the benefit of the Agent, the other Purchasers, the Indenture Trustee, the
Seller, the Servicer, the Depositor, the Transferor and the Issuer) that (x) if
-2-
it is a Noncommitted Purchaser, it will perform in accordance with their terms
all of the obligations which by the terms of the Class A Note Purchase Agreement
are required to be performed by it as a Purchaser which is a Noncommitted
Purchaser, or (y) if it is a Committed Purchaser, it will perform in accordance
with their terms all of the obligations which by the terms of the Class A Note
Purchase Agreement are required to be performed by it as a Purchaser which is a
Committed Purchaser and, if specified in Schedule II hereto, as a Liquidity
Provider.
(e) Schedule II hereto sets forth the Commitment and the initial
Investing Office of the Additional Purchaser, as well as administrative
information with respect to the Additional Purchaser.
(f) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(g) Notwithstanding anything contained herein or in any other
Related Document to the contrary, it is expressly understood and agreed by the
parties hereto that (a) this Supplement is executed and delivered by Wilmington
Trust Company, not individually or personally but solely as Owner Trustee, in
the exercise of the powers and authority conferred and vested in it under the
Trust Agreement, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as a personal
representation, undertaking or agreement by Wilmington Trust Company but is made
and intended for the purpose for binding only the Issuer and the Trust Estate,
and (c) under no circumstances shall Wilmington Trust Company be personally
liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Issuer under this Supplement or any other
related documents.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement
to be executed by their respective duly authorized officers on Schedule I hereto
as of the date set forth in Item 1 of Schedule I hereto.
-3-
SCHEDULE I TO
JOINDER SUPPLEMENT
------------------
COMPLETION OF INFORMATION AND
SIGNATURES FOR JOINDER SUPPLEMENT
Re: Class A Note Purchase Agreement, dated as of February 9, 2001,
among OMI Note Trust 2001-A, as Issuer, Oakwood Acceptance
Corporation, as Seller and Servicer, Oak Leaf Holdings, LLC,
as Depositor, Ginkgo Corporation, as Transferor, the
Purchasers party thereto and Credit Suisse First Boston, New
York Branch, as Agent.
Item 1: Date of Joinder Supplement:
Item 2: Additional Purchaser:
Item 3: Signatures of Parties to Agreement:
--------------------------------------------------
as Additional Purchaser
By:
--------------------------------------------------
Name:
Title:
[By:
---------------------------------------------------
Name:
Title:]
OMI NOTE TRUST 2001-A
as Issuer
By Wilmington Trust Company,
not in its individual capacity, but solely as
Owner Trustee
By:
----------------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Agent
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
-2-
SCHEDULE II TO
JOINDER SUPPLEMENT
------------------
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT
--------------------------
[Additional Purchaser]
Noncommitted Purchaser: Yes/No
Initial Noncommitted Purchaser Percentage: _______%
(if applicable)
Liquidity Providers and Initial Liquidity Percentage:
(if applicable)
---------------------- -------%
---------------------- -------%
---------------------- -------%
Aggregate Commitments of Liquidity Providers $____________
Committed Purchaser: Yes/No
------------
Initial Commitment Percentage: _______%
(if applicable)
Commitment: $____________
Liquidity Provider (if applicable):
Related Noncommitted Purchaser: _______________________
Liquidity Percentage: _______%
Amount of Commitment Held in
capacity as Liquidity Provider $____________
Address for Notices:
-------------------
Investing Office:
----------------
-3-
SCHEDULE III TO
JOINDER SUPPLEMENT
------------------
FORM OF
JOINDER EFFECTIVE NOTICE
To: [Names and addresses of
Issuer, Seller, Servicer, Indenture Trustee, Depositor, the Transferor
Agent and Additional Purchaser]
The undersigned, as Agent under the Class A Note Purchase
Agreement, dated as of February 9, 2001, among OMI Note Trust 2001-A, as Issuer,
Oakwood Acceptance Corporation, as Seller and Servicer, Oak Leaf Holdings, LLC,
as Depositor, Ginkgo Corporation, as Transferor, the Purchasers parties thereto
and Credit Suisse First Boston, New York Branch, as Agent for the Purchasers
thereunder, acknowledges receipt of five executed counterparts of a completed
Joinder Supplement with respect to ________, a copy of which is attached hereto.
[Note: attach copies of Schedules I and II from such Agreement.] Terms defined
in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the Joinder
Effective Date will be _____________, 200_.
Very truly yours,
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Agent
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
-4-
EXHIBIT C
---------
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1
of Schedule I hereto, among the transferor Purchaser set forth in Item 2 of
Schedule I hereto (the "Transferor Purchaser"), the Purchasing Purchaser set
forth in Item 3 of Schedule I hereto (the "Purchasing Purchaser"), and Credit
Suisse First Boston, New York Branch, as Agent for the Purchasers under, and as
defined in, the Class A Note Purchase Agreement described below (in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 8.1(e) of the Class A Note Purchase Agreement, dated
as of February 9, 2001, among OMI Note Trust 2001-A, as Issuer, Oakwood
Acceptance Corporation, as Seller and Servicer, Oak Leaf Holdings, LLC, as
Depositor, Ginkgo Corporation, as Transferor, the Purchasers parties thereto and
the Agent (as from time to time amended, supplemented or otherwise modified in
accordance with the terms thereof, the "Class A Note Purchase Agreement"; unless
otherwise defined herein, terms defined in the Class A Note Purchase Agreement
are used herein as therein defined);
WHEREAS, the Purchasing Purchaser (if it is not already a
Purchaser party to the Class A Note Purchase Agreement) wishes to become a
Purchaser party to the Class A Note Purchase Agreement and the Purchasing
Purchaser wishes to acquire and assume from the Transferor Purchaser, certain of
the rights, obligations and commitments under the Class A Note Purchase
Agreement; and
WHEREAS, the Transferor Purchaser wishes to sell and assign to
the Purchasing Purchaser, certain of its rights, obligations and commitments
under the Class A Note Purchase Agreement and be released from its obligations
with respect thereto.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Agent of five counterparts of this
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Transferor Purchaser, the
Purchasing Purchaser and the Agent, the Agent will transmit to the Servicer, the
Seller, the Issuer, the Depositor, the Transferor, the Indenture Trustee, the
Transferor Purchaser and the Purchasing Purchaser a Transfer Effective Notice,
substantially in the form of Schedule III to this Supplement (a "Transfer
Effective Notice"). Such Transfer Effective Notice shall be executed by the
Agent and shall set forth, inter alia, the date on which the transfer effected
by this Supplement shall become effective (the "Transfer Effective Date"). From
and after the Transfer Effective Date the Purchasing Purchaser shall be a
Purchaser party to the Class A Note Purchase Agreement for all purposes thereof
as a
-1-
Noncommitted Purchaser or Committed Purchaser and, if applicable, a Liquidity
Provider, as specified on Schedule II to this Supplement.
(b) At or before 12:00 Noon, local time of the Transferor
Purchaser, on the Transfer Effective Date, the Purchasing Purchaser shall pay to
the Transferor Purchaser, in immediately available funds, an amount equal to the
purchase price, as agreed between the Transferor Purchaser and such Purchasing
Purchaser (the "Purchase Price"), of the portion set forth on Schedule II hereto
being purchased by such Purchasing Purchaser of the outstanding advances under
the Note owned by the Transferor Purchaser (such Purchasing Purchaser's
"Purchase Percentage") and such other amounts as are agreed and are owing to the
Transferor Purchaser under the Class A Note Purchase Agreement or otherwise in
respect of the Notes. Effective upon receipt by the Transferor Purchaser of the
Purchase Price and such other amounts from the Purchasing Purchaser, the
Transferor Purchaser hereby irrevocably sells, assigns and transfers to the
Purchasing Purchaser, without recourse, representation or warranty, and the
Purchasing Purchaser hereby irrevocably purchases, takes and assumes from the
Transferor Purchaser, the Purchasing Purchaser's Purchase Percentage of (i) the
presently outstanding principal amount under the Notes owned by the Transferor
Purchaser and such other amounts as are agreed between the Transferor Purchaser
and the Purchasing Purchaser and are owing to the Transferor Purchaser under the
Note Purchase Agreement or otherwise in respect of the Notes, and (ii) the
Purchasing Purchaser's Purchase Percentage of (A) if the Transferor Purchaser is
a Noncommitted Purchaser, the Noncommitted Purchaser Percentage of the
Transferor Purchaser and the other rights, duties and obligations of the
Transferor Purchaser under the Class A Note Purchase Agreement, or (B) if the
Transferor Purchaser is a Committed Purchaser, the Commitment Percentage, the
Liquidity Percentage, if applicable, and the Commitment of the Transferor
Purchaser and the other rights, duties and obligations of the Transferor
Purchaser under the Class A Note Purchase Agreement. This Supplement is intended
by the parties hereto to effect a purchase by the Purchasing Purchaser and sale
by the Transferor Purchaser of the Transferor Purchaser's interests in the
Notes, the other amounts agreed by them and the other rights, duties and
obligations of the Transferor Purchaser under the Note Purchase Agreement and it
is not to be construed as a loan or a commitment to make a loan by the
Purchasing Purchaser to the Transferor Purchaser. The Transferor Purchaser
hereby confirms that the amount of the Class A Outstanding Amount of the Notes
is $ and its Percentage Interest thereof is ___%, which equals $ as
of , 200_. Upon and after the Transfer Effective Date (until further modified in
accordance with the Class A Note Purchase Agreement), the Noncommitted Purchaser
Percentage or Commitment Percentage, as applicable of the Transferor Purchaser
and the Purchasing Purchaser and the Commitment and the Liquidity Percentage, if
applicable, of the Transferor Purchaser and the Purchasing Purchaser, if any,
shall be as set forth in Schedule II to this Supplement. From and after the
Transfer Effective Date the Transferor Purchaser shall be released from its
duties and obligations under the Note Purchase Agreement to the extent of the
Purchase Percentage thereof transferred to the Purchasing Purchaser.
(c) The Transferor Purchaser has made arrangements with the
Purchasing Purchaser with respect to (i) the portion, if any, to be paid, and
the date or dates for payment, by the Transferor Purchaser to the Purchasing
Purchaser of any fees heretofore received by the
-2-
Transferor Purchaser pursuant to the Class A Note Purchase Agreement prior to
the Transfer Effective Date and (ii) the portion, if any, to be paid, and the
date or dates for payment, by the Purchasing Purchaser to the Transferor
Purchaser of fees or interest received by the Purchasing Purchaser pursuant to
the Class A Note Purchase Agreement or otherwise in respect of the Notes from
and after the Transfer Effective Date.
(d) (i)All principal, interest and other amounts that would
otherwise be payable from and after the Transfer Effective Date to or for the
account of the Transferor Purchaser in respect of the Notes shall, instead, be
payable to or for the account of the Transferor Purchaser and the Purchasing
Purchaser, as the case may be, in accordance with their respective interests as
reflected in this Supplement.
(ii) In the event that any amount of interest, fees or
other amounts accruing prior to the Transfer Effective Date was included in or
excluded from the Purchase Price or any other sum paid by the Purchasing
Purchaser, the Transferor Purchaser and the Purchasing Purchaser have made
appropriate arrangements for the allocation of such amounts between the
Transferor Purchaser and the Purchasing Purchaser and the payment thereof, as so
allocated, upon receipt of such amounts from the Agent.
(e) Concurrently with the execution and delivery hereof, the
Purchasing Purchaser will deliver to Agent, the Issuer, the Servicer, the
Seller, the Depositor and the Indenture Trustee an executed Investment Letter in
the form of Exhibit A to the Class A Note Purchase Agreement.
(f) Each of the parties to this Supplement agrees and
acknowledges that (i) at any time and from time to time upon the written request
of any other party, it will execute and deliver such further documents and do
such further acts and things as such other party may reasonably request in order
to effect the purposes of this Supplement, and (ii) the Agent shall apply each
payment made to it under the Class A Note Purchase Agreement, whether in its
individual capacity or as Agent, in accordance with the provisions of the Class
A Note Purchase Agreement, as appropriate.
(g) By executing and delivering this Supplement, the
Transferor Purchaser and the Purchasing Purchaser confirm to and agree with each
other and the Agent and the Purchaser as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse claim, the
Transferor Purchaser makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Class A Note Purchase Agreement, the Sale and
Servicing Agreement or the Indenture or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Class A Note Purchase
Agreement or any other instrument or document furnished pursuant thereto; (ii)
the Transferor Purchaser makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Seller, the
Servicer, the Depositor, the Transferor, the Issuer or the Indenture Trustee, or
the performance or observance by the Seller, the Servicer, the Depositor, the
Transferor, the Issuer or the Indenture Trustee of any of their respective
-3-
obligations under the Class A Note Purchase Agreement, the Indenture or any
other instrument or document furnished pursuant hereto; (iii) each Purchasing
Purchaser confirms that it has received a copy of such documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Supplement; (iv) each Purchasing Purchaser will, independently
and without reliance upon the Agent, the Transferor Purchaser or any other
Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Class A Note Purchase Agreement, the Sale and
Servicing Agreement or the Indenture; (v) each Purchasing Purchaser appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Class A Note Purchase Agreement, the Sale and Servicing
Agreement and the Indenture as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, all in
accordance with Section 7 of the Class A Note Purchase Agreement; and (vi) each
Purchasing Purchaser agrees (for the benefit of the Transferor Purchaser, the
Agent, the Purchasers, the Indenture Trustee, the Depositor, the Transferor, the
Seller, the Servicer and the Issuer) that it will perform in accordance with
their terms all of the obligations which by the terms of the Class A Note
Purchase Agreement are required to be performed by it as a Purchaser.
(h) Schedule II hereto sets forth the revised Noncommitted
Purchaser Percentage or the revised Commitment Percentage, the revised Liquidity
Percentage, if applicable, and Commitment of the Transferor Purchaser, as
applicable, the Noncommitted Purchaser Percentage or the Commitment Percentage,
the Liquidity Percentage, if applicable, and Commitment of the Purchasing
Purchaser, as applicable, and the initial Investing Office of the Purchasing
Purchaser, as well as administrative information with respect to the Purchasing
Purchaser.
(i) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
-4-
SCHEDULE I TO
TRANSFER SUPPLEMENT
-------------------
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Class A Note Purchase Agreement, dated as of February 9, 2001,
among OMI Note Trust 2001-A, Oakwood Acceptance Corporation,
as Seller and Servicer, Oak Leaf Holdings, LLC, as Depositor,
Ginkgo Corporation, as Transferor, the Purchasers party
thereto and Credit Suisse First Boston, New York Branch, as
Agent.
Item 1. : Date of Transfer Supplement:
Item 2. : Transferor Purchaser:
Item 3: Purchasing Purchaser:
Item 4: Signatures of Parties to Agreement:
----------------------------------------------------
as Transferor Purchaser
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
----------------------------------------------------
as Purchasing Purchaser
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
-1-
CONSENTED TO AND ACCEPTED BY:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Agent
By:
--------------------------------------------------
Name:
Title:
By:
--------------------------------------------------
Name:
Title:
-2-
SCHEDULE II TO
TRANSFER SUPPLEMENT
-------------------
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS, PURCHASE
AND COMMITMENT PERCENTAGES AND PURCHASE PRICE
[Transferor Purchaser]
A. Noncommitted Purchaser: Yes/No
If applicable:
Noncommitted Purchaser Percentage:
---------------------------------
Transferor Purchaser
Noncommitted Purchaser Percentage
Prior to Sale: _____%
Noncommitted Purchaser Percentage Sold: _____%
Noncommitted Purchaser Percentage Retained: _____%
Liquidity Providers and Liquidity Percentages after Sale:
------------------------- -----%
------------------------- -----%
------------------------- -----%
Aggregate Commitments of Liquidity Providers
after Sale $____________
B. Committed Purchaser: Yes/No
---------
If applicable:
Commitment Percentage:
---------------------
Transferor Purchaser Commitment Percentage
Prior to Sale: _____%
Commitment Percentage Sold: _____%
Commitment Percentage Retained: _____%
-3-
Commitment:
-----------
Transferor Purchaser Commitment
Prior to Sale: $________
Commitment Sold: $________
Commitment Retained: $________
C. Liquidity Commitment:
--------------------
Related Noncommitted Purchaser: ______________________
Liquidity Percentage Prior to Sale: _____%
Liquidity Percentage Sold: _____%
Liquidity Percentage Retained: _____%
Amount of Commitment Held in
capacity as Liquidity Provider after sale $____________
D. Class A Outstanding Amount of Notes:
Transferor Purchaser
Class A Outstanding Amount of Notes Prior to Sale: $________
Class A Outstanding Amount of Notes Sold: $________
Class A Outstanding Amount of Notes Retained: $________
E. Purchase Percentage: _____%
-------------------
[Purchasing Purchaser]
A. Noncommitted Purchaser: Yes/No
If applicable:
Initial Noncommitted Purchaser Percentage: _____%
Liquidity Providers and Liquidity Percentages after Sale:
------------------------- -----%
------------------------- -----%
------------------------- -----%
-β-
βββββββββ Commitments of Liquidity Providers
after Sale $____________
B. Committed Purchaser: Yes/No
---------
If applicable:
Commitment Percentage: _____%
Commitment: $________
Related Noncommitted Purchaser: ______________________
Liquidity Percentage: _____%
Amount of Commitment Held in
capacity as Liquidity Provider after sale $____________
C. Class A Outstanding Amount of Notes Owned Immediately
After Sale: $________
Address for Notices:
-------------------
Investing Office:
----------------
-5-
SCHEDULE III TO
TRANSFER SUPPLEMENT
-------------------
Form of
Transfer Effective Notice
-------------------------
To: [Name and address of
Issuer, Servicer, Indenture Trustee, the Transferor
Purchaser and the Purchasing Purchaser]
The undersigned, as Agent under the Class A Note Purchase
Agreement, dated as of February 9, 2001, among OMI Note Trust 2001-A, as Issuer,
Oakwood Acceptance Corporation, as Seller and Servicer, Oak Leaf Holdings, LLC,
as Depositor, Ginkgo Corporation, as Transferor, the Purchasers parties thereto
and Credit Suisse First Boston, New York Branch, as Agent for the Purchasers
thereunder, acknowledges receipt of five executed counterparts of a completed
Transfer Supplement with respect to a transfer from ________ to _______, a copy
of which is attached hereto. [Note: attach copies of Schedules I and II from
such Agreement.] Terms defined in such Supplement are used herein as therein
defined.
Pursuant to such Transfer Supplement, you are advised that the
Transfer Effective Date will be _____________, 200_.
Very truly yours,
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Agent
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
-6-