EXHIBIT 10.3
RECEIVABLES CONTRIBUTION AGREEMENT
OAKWOOD ACCEPTANCE CORPORATION
(Seller)
OAKWOOD ADVANCE RECEIVABLES COMPANY, L.L.C.
(Issuer)
Dated as of September 28, 2001
OAC ADVANCE RECEIVABLES BACKED NOTES, SERIES 2001-ADV
RECEIVABLES CONTRIBUTION AGREEMENT
This RECEIVABLES CONTRIBUTION AGREEMENT (this "Agreement") is made as
of September 28, 2001, by and between OAKWOOD ACCEPTANCE CORPORATION, a North
Carolina corporation (together with any successors, the "Seller"), and OAKWOOD
ADVANCE RECEIVABLES COMPANY, L.L.C., a Nevada limited liability company (the
"Issuer").
RECITALS
A. The Issuer is a special purpose limited liability company,
the sole member of which is the Seller.
B. The Issuer, Oakwood Acceptance Corporation, individually
("OAC") and as REMIC servicer (the "REMIC Servicer") and The Chase Manhattan
Bank, as trustee (the "Trustee"), as verification agent (the "Verification
Agent") and as paying agent (the "Paying Agent") propose to enter into an
Indenture (the "Indenture") dated as of September 28, 2001 pursuant to which
the OAC Advance Receivables Backed Notes, Series 2001-ADV (the "Notes") will be
issued.
C. The Notes to be issued by the Issuer pursuant to the
Indenture will be collateralized by certain Receivables and related property
and certain monies in respect thereof now owned and to be hereafter acquired by
the Issuer.
D. As of the date hereof, the Seller has a 100% membership
interest in the Issuer and, in consideration of the transfer to the Issuer of
the Aggregate Receivables and related property, BEGINNING ON THE CLOSING DATE,
both THEN owned and THEREAFTER acquired by the Seller, upon the terms and
subject to the conditions set forth in this Agreement, the Issuer has agreed to
pay to the Seller a purchase price (for each Receivable, its "Purchase Price")
in an amount equal to the "Funding Amount" (as defined in the Indenture) for
such Receivable. To the extent the Purchase Price paid in cash by the Issuer for
any Receivable is less than 100% of the fair market value thereof, the Seller
shall be deemed to have contributed the balance of the fair market value of the
Receivable to the capital of the Issuer.
AGREEMENT
NOW, THEREFORE, in consideration of the above premises and of the
mutual promises hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS.
This Agreement is entered into in connection with the terms and
conditions of the Indenture. Any capitalized term used but not defined herein
shall have the meaning given to it in the Indenture.
"Advance Financing Person" shall have the meaning specified in the
related REMIC Pooling Agreement.
"Aggregate Receivables" means all Initial Receivables and all
Additional Receivables under a Designated REMIC Trust sold and/or contributed
by the Seller to the Issuer hereunder.
"Aggregate Receivables Balance" means as of any date of determination
and with respect to the Aggregate Receivables, the aggregate current
outstanding amount of such Aggregate Receivables.
"Asset-Based REMIC Trusts" shall have the meaning assigned to such
term in Section 2(a) of this Agreement.
"CLOSING DATE" MEANS OCTOBER 2, 2001.
"Designated REMIC Trusts" means the REMIC Trusts listed on Schedule 1
hereto, as amended or modified from time to time in accordance with the terms
and conditions hereunder, subject to the provisions of Section 2(a).
"Initial Receivables" shall have the meaning specified in Section
2(a).
"Initial Receivables Balance" means the aggregate Receivables Balance
of the Initial Receivables.
"Lien" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind.
"Purchase Price" has the meaning assigned to that term in paragraph D.
in the "RECITALS" section of this Agreement.
"Qualified Insurer" means, with respect to any required insurance
policy or bond, an insurance company or security or bonding company qualified
to issue such policy or bond in the relevant jurisdiction and who has a
"financial strength" and/or "claims paying ability" rating of at least "BBB"
from the Rating Agency or, if not rated by the Rating Agency, a comparable
rating from at least two nationally recognized statistical rating
organizations.
"Receivable" means the contractual right to reimbursement from a REMIC
Trust for a P&I Advance made by OAC as REMIC Servicer in connection with such
REMIC Trust, which P&I Advance has not previously been reimbursed, and which
P&I Advance has been Granted to the Trust Estate by the Issuer under the
Indenture, and including all rights of OAC to enforce payment of such
obligation under the related REMIC Pooling Agreement.
"Subsidiary" of a Person means (a) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (b) any partnership, limited liability company, association,
joint venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned
or controlled.
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SECTION 2. TRANSFER AND ASSIGNMENT OF RECEIVABLES.
(a) On the Closing Date, the Seller shall, subject to
the provisions hereof, sell and contribute to the Issuer, and the Issuer shall
acquire from the Seller, the contractual rights to reimbursement for all P&I
Advances existing as of the Closing Date under the REMIC Pooling Agreements
with respect to the Designated REMIC Trusts (except the Asset-Based REMIC
Trusts) together with all rights of the Seller to enforce such rights to
reimbursement (the "Initial Receivables"). No Asset-Based Receivables related
to any Asset-Based REMIC Trust listed on Attachment A to Schedule 1 (the
"Initial Asset-Based REMIC Trusts") shall be sold or contributed by the Seller
to the Issuer, and each Initial Asset-Based REMIC Trust shall not be a
Designated REMIC Trust, in each case until the Majority Noteholders are
satisfied that the Seller's accounting system properly and accurately accounts
for and reports the creation and reimbursement of the Asset-Based Receivables
related to such Asset-Based REMIC Trust. Pursuant to Section 6.12 of the
Indenture, the Majority Noteholders shall deliver written notice of such
satisfaction at such time as the Seller shall have demonstrated such ability to
the satisfaction of the Majority Noteholders. Upon delivery by the Majority
Noteholders to the Seller of a written instrument confirming such satisfaction
with respect to any Initial Asset-Based REMIC Trust(s), such Trust(s)
identified in such instrument shall be eligible for inclusion in the Designated
REMIC Trusts, and, on the Business Day following that date (the "Asset-Based
Receivables Acceptance Date" for those REMIC Trusts identified in the
instrument delivered by the Majority Noteholders), subject to the provisions
hereof, the Seller shall sell and contribute to the Issuer, and the Issuer
shall acquire from the Seller, the contractual rights to reimbursement for P&I
Advances existing as of such Asset-Based Receivables Acceptance Date under the
REMIC Pooling Agreements with respect to such Asset-Based REMIC Trusts,
together with all rights of the Seller to enforce such rights to reimbursement.
The Receivables sold and contributed to the Issuer on the Asset-Based
Receivables Acceptance Dates are referred to herein as the "Initial Asset-Based
Receivables." After the Closing Date and during the Funding Period, upon the
making of a P&I Advance under a REMIC Pooling Agreement, the Seller
automatically and without any further action on its part shall sell and
contribute to the Issuer and the Issuer shall accept the right to be reimbursed
by the Designated REMIC Trust for such P&I Advance together with all rights of
the Seller to enforce such rights to reimbursement under the related REMIC
Pooling Agreement (each, an "Additional Receivable"). The Aggregate Receivables
at any time of determination shall consist of the Initial Receivables, the
Initial Asset-Based Receivables sold and contributed to the issuer prior to
such time of determination, and the Additional Receivables sold and contributed
to the Issuer prior to such time of determination.
(b) The REMIC Trusts that constitute the Designated
REMIC Trusts as of the Closing Date are listed on Attachment B to Schedule 1
attached hereto (Schedule 1 is referred to herein as the "Designated Trust
Schedule"). Each Asset-Based REMIC Trust listed on Attachment A to Schedule 1
shall automatically be included among the Designated REMIC Trusts on the
related Asset-Based Receivables Acceptance Date upon the occurrence of the
conditions specified in Section 2(a) above. In addition, the Seller may at any
time designate any other REMIC Trust as a Designated REMIC Trust under this
Agreement (each such REMIC Trust so designated being sometimes referred to
herein as an "Added REMIC Trust") with the prior written consent of the
Majority Noteholders by executing with the Issuer an updated Designated Trust
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Schedule and delivering a copy of such executed updated Designated Trust
Schedule to the Trustee and Noteholders. Upon such designation, all rights to
reimbursement for P&I Advances relating to such Added REMIC Trust as of such
date of designation shall be sold and contributed hereunder to the Issuer and
shall be Granted to the Trust Estate pursuant to the terms of the Indenture.
Following any such designation of a REMIC Trust as a Designated REMIC Trust,
the Issuer shall withdraw or cause to be withdrawn the P&I Advance
Reimbursement Amount from the related Certificate Accounts, pursuant to the
related REMIC Pooling Agreements. The Issuer shall deliver or cause to be
delivered the portion of the P&I Advance Reimbursement Amount that constitutes
Net Proceeds to the Advance Financing Person. The Seller may at any time with
the prior written consent of the Majority Noteholders, in their sole and
absolute discretion, remove a REMIC Trust as a Designated REMIC Trust under
this Agreement (each such REMIC Trust so removed being sometimes referred to
herein as a "De-Designated REMIC Trust"). Upon receipt of such consent, the
Seller and the Issuer shall execute an updated Designated Trust Schedule and
deliver a copy thereof to the Trustee, the Noteholders and the Issuer. Such
prior written consent of the Majority Noteholders is not required for the
Seller to remove a REMIC Trust as a Designated REMIC Trust under this Agreement
if:
(i) OAC engages a financial guarantor to
guarantee the Notes;
(ii) such financial guarantor is MBIA Insurance
Corporation ("MBIA"), Ambac Assurance Corporation ("AMBAC"), Financial
Security Assurance Inc. ("FSA") or Financial Guaranty Insurance
Company ("FGIC") or any other financial guarantor that is rated Aaa,
AAA and AAA by ▇▇▇▇▇'▇, Fitch and Standard and Poors, respectively;
(iii) the financial guarantee is a timely
interest guarantee;
(iv) the financial guarantee guarantees
principal no later than the Final Payment Date; and
(v) any amendment to the Transaction Documents
required to engage such financial guarantor is subject to and so
receives the reasonable approval of the Majority Noteholders.
Upon such removal, (i) all Receivables related to such De-Designated REMIC
Trust shall be released from the lien of the Indenture, and (ii) all rights to
reimbursement for P&I Advances related to such De-Designated REMIC Trust
arising on or after the date of such release shall not be sold or contributed
to the Issuer, and shall not be included in any calculation of Additional
Receivables. Each such Designated Trust Schedule is incorporated by this
reference into this Agreement.
(c) Subject to the terms and conditions contained
herein, the Seller hereby sells, assigns, conveys, contributes and transfers to
the Issuer without recourse, and the Issuer hereby accepts, all of the Seller's
right, title and interest in, to and under the following described property and
interests in property (the "Contributed Assets"):
(i) as of the Closing Date, the Initial
Receivables with respect to the Designated REMIC Trusts identified on
Attachment B to Schedule 1 attached hereto and
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entered into between the Seller and the Issuer, delivered by the
Seller to the Issuer and the Trustee and all monies due thereon or
paid thereunder or in respect thereof on and after the Closing Date;
(ii) as of the related Asset-Based Receivables
Acceptance Date, the Initial Asset-Based Receivables with respect to
the REMIC Trusts identified on Attachment A to Schedule 1 attached
hereto which are accepted by the Majority Noteholders as of such
Asset-Based Receivables Acceptance Date, as described in Section 2(a)
above, and all monies due thereon or paid thereunder or in respect
thereof on and after the Asset-Based Receivables Acceptance Date;
(iii) after the Closing Date (or after the
related Asset-Based Receivables Acceptance Date in the case of the
Initial Asset-Based Receivables with respect to any Asset-Based REMIC
Trust) and during the Funding Period, all right, title and interest of
the Seller to Additional Receivables as of the date of creation
thereof with respect to the Designated REMIC Trusts identified on the
Designated Trust Schedule attached hereto, as updated and amended from
time to time, including without limitation, the right to receive
Aggregate Servicing Amounts;
(iv) copies of all books, records and documents
relating to the Aggregate Receivables in any medium including without
limitation paper, tapes, disks and other electronic media; and
(v) all proceeds, products, rents and profits
of any of the foregoing and all other amounts payable in respect of
the foregoing.
(d) [RESERVED]
(e) It is the intention of the Seller and the Issuer
that each transfer and assignment contemplated by this Agreement shall
constitute a sale and/or contribution and absolute assignment of the
Contributed Assets from the Seller to the Issuer and that the Contributed
Assets shall not be part of the Seller's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy law. The
Seller agrees to execute and file all filings (including filings under the UCC)
necessary in any jurisdiction to provide third parties with notice of the sale
and/or contribution and assignment of the Contributed Assets pursuant to this
Agreement to perfect such sale, contribution and assignment and to perfect the
first priority security interest in the Contributed Assets (as referenced in
Section 2(f)) under the UCC.
(f) Although the parties hereto intend that the transfer
and assignment contemplated by this Agreement be a true sale and/or
contribution outright and not as security, in the event such transfer and
assignment is deemed to be other than a sale and/or contribution, the parties
intend that (i) all filings described in the foregoing paragraph shall give the
Issuer a first priority perfected security interest in, to and under the
Contributed Assets, and other property conveyed hereunder and all proceeds of
any of the foregoing and (ii) this Agreement shall be a security agreement and
shall be deemed to be the grant of a security interest from the Seller to the
Issuer in the Contributed Assets and the Issuer shall have all rights, powers
and privileges of
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a secured party under the UCC. In furtherance of the foregoing intent, the
Seller hereby grants to the Issuer a security interest in the Contributed
Assets to secure the obligations of the Seller to the Issuer under the related
Transaction Documents.
(g) In connection with the foregoing conveyance, the
Seller shall ensure that, from and after the time of sale and/or contribution
and conveyance of the Aggregate Receivables to the Issuer under this Agreement,
the records (including any computer records and back-up archives) maintained by
or on behalf of the Seller that refer to any Aggregate Receivable indicate
clearly the interest of the Issuer in such Aggregate Receivable and that such
Aggregate Receivable is owned by the Issuer. Indication of the Issuer's
ownership of an Aggregate Receivable shall be deleted from or modified on such
records when, and only when, such Aggregate Receivable has been paid in full,
repurchased or assigned by the Issuer.
(h) The Seller has notified the related REMIC Trustees
with respect to the initial Designated REMIC Trusts of the assignment, transfer
of ownership and pledge of Aggregate Receivables related to such REMIC Trusts,
including the related P&I Advance Reimbursement Amounts, pursuant to amendments
to the related REMIC Pooling Agreements. In the event any additional REMIC
Trusts are added as Designated REMIC Trusts in the future, the Seller shall
similarly notify the related REMIC Trustees and any other parties to the
related REMIC Pooling Agreements.
(i) The Seller agrees that all Contributed Assets
transferred, assigned and delivered to the Issuer hereunder shall comply with
all the representations and warranties set forth in this Agreement and all
other Transaction Documents.
(j) On each Funding Date on or prior to which Additional
Receivables are or have been sold and/or contributed to the Issuer and for
which the Issuer shall pay the related Purchase Price, the Seller and the
Issuer shall execute a Schedule of Receivables which shall list the Aggregate
Receivables with respect to the Designated REMIC Trusts described therein and
any related Contributed Assets that are subject to the provisions hereof and
the other Transaction Documents as of such Funding Date.
SECTION 3. SELLER'S ACKNOWLEDGMENT AND CONSENT TO ASSIGNMENT.
Seller hereby acknowledges that the Issuer has Granted to the Trustee,
on behalf of the Noteholders, the rights of the Issuer as Purchaser under this
Agreement, including, without limitation, the right to enforce the obligations
of the Seller hereunder. The Seller hereby consents to such Grant by the Issuer
to the Trustee in the Indenture. The Seller acknowledges that the Trustee shall
be a third party beneficiary in respect of the representations, warranties,
covenants, rights and benefits arising hereunder that are so Granted by the
Issuer. Moreover, the Seller hereby authorizes and appoints as its
attorney-in-fact the Issuer and the Trustee, as the Issuer's assignee, on
behalf of the Seller, to execute and deliver such documents or certificates as
may be necessary in order to enforce its rights to or collect under the
Receivables.
SECTION 4. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF
SELLER.
The Seller hereby makes the following representations and warranties
for the benefit of the Issuer and the Noteholders on which the Issuer is
relying in accepting the Aggregate
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Receivables and executing this Agreement and on which the Noteholders are
relying in purchasing the Notes. The representations are made as of the CLOSING
DATE, and as of each date of sale and/or contribution of the Aggregate
Receivables. Such representations and warranties shall survive the transfer,
sale, assignment and contribution of any Aggregate Receivables to the Issuer and
are as follows:
(a) Organization and Good Standing. The Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of North Carolina with corporate power and authority to own
its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and had at all
relevant times, and now has and so long as any Notes are outstanding, will
continue to have, power, authority and legal right to acquire, own, hold,
transfer, assign and convey the Aggregate Receivables.
(b) Due Qualification. The Seller is and will continue
to be duly qualified to do business as a foreign corporation in good standing,
and has obtained and will keep in full force and effect all necessary licenses,
permits and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such qualifications,
licenses, permits or approvals and as to which the failure to obtain or to keep
in full force and effect such licenses, permits or approvals would have a
material and adverse impact upon the value or collectability of the Aggregate
Receivables.
(c) Power and Authority. The Seller has and will
continue to have all requisite corporate power and authority to own the
Aggregate Receivables, to execute and deliver this Agreement, the Indenture,
each Schedule of Receivables and any and all other instruments and documents
necessary to consummate the transactions contemplated hereby (the "Seller's
Related Documents") and to perform each of its obligations under this Agreement
and under the Seller's Related Documents, and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and each of the Seller's Related Documents by the Seller, the performance by
the Seller of its obligations hereunder and thereunder, and the consummation of
the transactions contemplated hereby and thereby have each been duly authorized
by the Board of Directors of the Seller and no further corporate actions are
required to be taken by the Seller in connection therewith.
(d) Valid Transfer; Binding Obligation. Upon the
execution and delivery of this Agreement and each Schedule of Receivables by
each of the parties hereto, this Agreement shall evidence a valid sale,
transfer, assignment and contribution of the Aggregate Receivables, which is
enforceable against creditors of and purchasers from the Seller, except as such
enforceability may be limited by bankruptcy, insolvency or similar laws and by
equitable principles. This Agreement and each of the other Transaction
Documents to which the Seller is a party has been, or when delivered will have
been duly executed and delivered and constitutes the legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency
or similar laws and by equitable principles.
(e) No Violation. Neither the execution, delivery and
performance of this Agreement, the other Transaction Documents or the Seller's
Related Documents by the Seller
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nor the consummation by the Seller of the transactions contemplated hereby or
thereby nor the fulfillment of or compliance with the terms and conditions of
this Agreement, the Seller's Related Documents or the other Transaction
Documents to which the Seller is a party (i) will violate the articles of
incorporation or the bylaws or other organizational documents of the Seller,
(ii) will constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default), or result in a breach or acceleration of,
any material indenture, agreement or other material instrument to which the
Seller or any of its subsidiaries is a party or by which it is bound, or which
may be applicable to the Seller, (iii) constitutes a default (whether with
notice or lapse of time or both), or results in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of the
Seller, under the terms of any of the foregoing or (iv) violates any statute,
ordinance or law or any rule, regulation, order, writ, injunction or decree of
any court or of any public, governmental or regulatory body, agency or
authority applicable to the Seller or its properties.
(f) No Proceedings. There is no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or to the Seller's knowledge, threatened, against or
affecting the Seller: (i) in which a third party not affiliated with the
Trustee or a Noteholder asserts the invalidity of any of the Transaction
Documents, (ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by any of the Transaction
Documents, (iii) except as set forth in Schedule 3, seeking any determination
or ruling that should reasonably be expected to materially and adversely affect
(A) the performance by the Seller or its Affiliates of their obligations under,
or the validity or enforceability of, any of the Transaction Documents or (B)
the condition (financial or otherwise), business or operations of the Seller,
or (iv) relating to the Seller or its Affiliates and which should reasonably be
expected to adversely affect the federal income tax attributes of the Notes.
(g) [RESERVED]
(h) No Violation of Exchange Act or Regulations T, U or
X. None of the transactions contemplated in the Transaction Documents
(including the use of the proceeds from the sale of the Notes) will result in a
violation of Section 7 of the Exchange Act, or any regulations issued pursuant
thereto, including Regulations T, U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R., Chapter II.
(i) [RESERVED]
(j) All Consents Obtained. All approvals,
authorizations, consents, orders or other actions of any persons or of any
governmental body or official required in connection with the execution and
delivery by the Seller of this Agreement and the Transaction Documents to which
the Seller is a party, the performance by the Seller of the transactions
contemplated by this Agreement and the other Transaction Documents to which it
is a party and the fulfillment by the Seller of the terms hereof and thereof,
have been obtained.
(k) Not an Investment Company. The Seller is not an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act, and none of the execution,
delivery or performance of obligations under this
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Agreement or any of the Seller's Related Documents, or the consummation of any
of the transactions contemplated thereby (including, without limitation, the
sale and contribution of the Contributed Assets hereunder) will violate any
provision of the Investment Company Act, or any rule, regulation or order
issued by the Securities and Exchange Commission thereunder.
(l) All Tax Returns True, Correct and Timely Filed. All
material tax returns required to be filed by the Seller in any jurisdiction
have in fact been filed and all taxes, assessments, fees and other governmental
charges upon the Seller or upon any of its properties, income or franchises
shown to be due and payable on such returns have been paid other than those
being contested in good faith and for which an adequate reserve has been
established in accordance with GAAP. To the best of the Seller's knowledge all
such tax returns were true and correct in all material respects and the Seller
knows of no proposed material additional tax assessment against it nor of any
basis therefor. The provisions for taxes on the books of the Seller and each
subsidiary are in accordance with generally accepted accounting principles.
(m) No Restrictions on Seller Affecting Its Business.
The Seller is not a party to any contract or agreement, or subject to any
charter or other corporate restriction which materially and adversely affects
its business.
(n) Perfection of Security Interest. All filings and
recordings as may be necessary to perfect the interest of the Issuer in the
Aggregate Receivables have been accomplished and are in full force and effect.
After giving effect to these filings the Issuer will have a valid first
priority perfected security interest in the Aggregate Receivables not subject
to prior liens. The Seller will from time to time, at its own expense, execute
and file such additional financing statements (including continuation
statements) as may be necessary to ensure that at any time, the interest of the
Issuer, the Trustee and the Noteholders in all of the Aggregate Receivables are
fully protected.
(o) All Taxes, Fees and Charges Relating to Transaction
and Transaction Documents Paid. Any taxes, fees and other governmental charges
due and payable by the Seller in connection with the execution and delivery of
the Agreement and the transactions contemplated hereby have been or will be
paid by the Seller at or prior to the Closing Date.
(p) RESERVED.
(q) No Broker, Finder or Financial Adviser Other Than
Credit Suisse First Boston. Neither the Seller nor any of its officers,
directors, employees or agents has employed any broker, finder or financial
adviser other than Credit Suisse First Boston Corporation or incurred any
liability for fees or commissions to any person other than Credit Suisse First
Boston Corporation in connection with the offering, issuance or sale of the
Notes. All fees and commissions payable to Credit Suisse First Boston
Corporation and to any such entity shall be paid by the Seller and the Seller
agrees to indemnify, defend and hold harmless the Noteholders from and against
any and all claims, liabilities, damages and related costs and expenses
(including, without limitation reasonable attorneys fees and disbursements)
relating to or arising out of such fees and commissions.
(r) Location of Jurisdiction of Organization and
Records. The principal place
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of business and chief executive office of the Seller, and the office where the
Seller maintains all of its records, is located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇; provided that, at any time after the Closing Date,
upon 30 days' prior written notice to each of the Issuer, the Noteholders and
the Trustee, the Seller may relocate its jurisdiction of incorporation,
principal place of business and chief executive office, and/or the office where
it maintains all of its records, to another location or jurisdiction, as the
case may be within the United States to the extent that the Seller shall have
taken all actions necessary or reasonably requested by the Issuer, the Majority
Noteholders or the Trustee to amend its existing financing statements and
continuation statements, and file additional financing statements and to take
any other steps reasonably requested by the Issuer, the Majority Noteholders or
the Trustee to further perfect or evidence the rights, claims or security
interests of any of the Issuer or any assignee or beneficiary of the Issuer's
rights under this Agreement, including the Trustee and the Noteholders under
any of the Transaction Documents; provided, however, that the prerequisites set
forth in this sentence shall not apply to the merger contemplated by the
following sentence, if all preconditions specified in the following sentence
are satisfied. It is understood and agreed that the Seller intends to merge
into Oakwood Acceptance Corporation, LLC, a Delaware limited liability company
(the "Successor") on or around September 30, 2001, and that, prior to effecting
the merger, (1) OAC shall ensure that the Successor executes an assignment and
assumption agreement substantially in the form of Exhibit B attached hereto on
or before the Closing Date, and (2) the Seller shall file financing statements
in Delaware naming the Successor as debtor, the Issuer as secured party, and
the Trustee as assignee of the secured party, with the same collateral
description as that provided with respect to the UCC-1 financing statements
filed naming such parties in such capacities with the North Carolina Secretary
of State and in Guilford County, North Carolina, in connection with the closing
of the transactions contemplated hereby.
(s) Ownership of the Issuer. One hundred percent (100%)
of the membership interests in the Issuer are directly owned (both beneficially
and of record) by the Seller. Such membership interests are fully paid and
nonassessable and no one other than the Seller has any rights to acquire
membership interests in the Issuer.
(t) Solvency. The Seller, both prior to and after giving
effect to each sale and contribution of Aggregate Receivables with respect to
the Designated REMIC Trusts identified in a Schedule of Receivables on the
Closing Date or on any date of sale or contribution thereafter (i) is not, and
will not be, "insolvent" (as such term is defined in ss. 101(32)(A) of the
Bankruptcy Code), (ii) is, and will be, able to pay its debts as they become
due, and (iii) does not have unreasonably small capital for the business in
which it is engaged or for any business or transaction in which it is about to
engage.
(u) Reporting and Accounting Treatment. For reporting
and accounting purposes, and in its books of account and records, the Seller
will treat the conveyance of Aggregate Receivables pursuant to this Agreement
as an absolute sale, assignment and contribution to the capital of the Issuer
of the Seller's full right, title and ownership interest in each such Aggregate
Receivable and the Seller has not accounted for or treated in any other manner
and will not account for or treat the transactions in any other manner. If a
third party, including a potential purchaser of the Aggregate Receivables,
should inquire, the Seller will promptly indicate that the Aggregate
Receivables have been sold, assigned and contributed and will claim no
ownership interest therein.
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(v) Location of Receivable Files. As of the Closing Date
and as of each Payment Date, each Receivable File is kept by OAC, as Custodian,
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address
permitted pursuant to Section 2.05(b) of the Indenture.
(w) Necessary Actions Taken. The Seller has performed
all actions necessary to sell, contribute and absolutely assign the Aggregate
Receivables to the Issuer, including, without limitation, any necessary
notifications to the REMIC Trustee or other parties.
(x) Delivery of Documents. All of the REMIC Pooling
Agreements have been delivered to the Issuer, and such copies constitute true
and correct copies of such agreements and there are no amendments,
modifications, or other agreements pertaining to the REMIC Pooling Agreements
which would affect the Aggregate Receivables which have not been delivered to
the Issuer as of the date hereof.
(y) No Fraudulent Conveyance. The Seller is not selling
and contributing the Aggregate Receivables to the Issuer with any intent to
hinder, delay or defraud any of its creditors.
(z) Financial Statements. The consolidated balance
sheets of Oakwood Homes as at September 30, 2000 and for the fiscal year then
ended and as at June 30, 2001 and for the nine-month period then ended, and the
related consolidated statements of income, fairly present the financial
condition and operations of Oakwood Homes as at such dates and the results of
the operations of Oakwood Homes for the periods ended on such dates (subject to
normal year end adjustments), all in accordance with generally accepted
accounting principles consistently applied.
(aa) Aggregate Receivables.
(i) Each Aggregate Receivable is payable in
United States dollars and has been created pursuant to a REMIC Pooling
Agreement between the Seller and the trustee of a REMIC Trust, in
accordance with the terms of such REMIC Pooling Agreement and with the
customary procedures and in the ordinary course of business of the
Seller and is being transferred, sold, assigned and contributed by the
Seller to the Issuer hereunder. Each Aggregate Receivable arises from
a P&I Advance for which the REMIC Servicer is entitled to
reimbursement pursuant to a REMIC Pooling Agreement.
(ii) The rights to reimbursement for the P&I
Advances under each REMIC Pooling Agreement are eligible for
assignment and Grant to the Trust Estate and such assignment and Grant
will not violate the terms or require any consent under the related
REMIC Pooling Agreement or any other document or agreements to which
the Seller is a party or to which its assets or properties are
subject, except any such consents of lenders to Oakwood Homes as have
been previously obtained.
(iii) The information set forth in any Schedule
of Receivables hereto shall be true and correct as of the Closing Date
and each date of delivery thereof.
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(iv) It is the intention of the Seller that the
transfer and assignment herein contemplated, taken as a whole,
constitute a sale and/or contribution and assignment of the Aggregate
Receivables from the Seller to the Issuer and that the Aggregate
Receivables shall not be part of the Seller's estate in the event of
the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Aggregate Receivable has been sold, transferred,
contributed, assigned or pledged by the Seller to any Person other
than the Issuer. Immediately prior to the transfer and assignment
herein contemplated, the Seller had good and marketable title to each
Aggregate Receivable, free and clear of all Liens and rights of
others; immediately upon the transfer and assignment thereof, the
Issuer will have good and marketable title to each Aggregate
Receivable, free and clear of all Liens and rights of others; and the
transfer and assignment herein contemplated has been perfected under
the UCC and any other applicable law.
(v) As of any date of sale and/or contribution
of Aggregate Receivables, with respect to the Aggregate Receivables
transferred on such date, the Seller has not taken any action that, or
failed to take any action the omission of which, would materially
impair the rights of the Issuer with respect to any Aggregate
Receivable.
(vi) As of any date of sale and/or contribution
of Aggregate Receivables, with respect to the Aggregate Receivables
transferred on such date, no Aggregate Receivable has been identified
by the Seller or reported to the Seller by the related REMIC Trust as
having resulted from fraud perpetrated by any Person with respect to
the related account.
(vii) All filings (including UCC filings)
necessary in any jurisdiction to provide third parties with notice of
the transfer, sale, contribution and assignment herein contemplated,
to perfect the transfer, sale and contribution of the Aggregate
Receivables hereunder and to give the Issuer a complete ownership
interest or (in the event that such transfer is not deemed an absolute
assignment, sale and contribution) a security interest in the
Aggregate Receivables that is prior to any other interest held by any
other person (except the Trustee on behalf of the Noteholders) shall
have been made.
(viii) No Aggregate Receivable is secured by "real
property" or "fixtures" or evidenced by an "instrument" under and as
defined in the UCC.
(ix) Each Aggregate Receivable is and shall
continue to be the legal, valid and binding obligation of the related
REMIC Trust and is and shall continue to be enforceable in accordance
with its terms. Each P&I Advance complied with all laws, including
those relating to consumer protection, is valid and enforceable and at
the time sold and contributed to the Issuer, will not be subject to
any set-off, counterclaim or other defense to payment by the Obligor
or any other person.
(x) Each Aggregate Receivable is entitled to be
paid, has not been repaid in whole or in part or been compromised,
adjusted, extended, satisfied, subordinated, rescinded, amended or
modified, and is not subject to compromise,
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adjustment, extension, satisfaction, subordination, rescission,
set-off, counterclaim, defense, amendment or modification by the
Seller.
(xi) Each REMIC Pooling Agreement provides that
it is governed by and is to be construed in accordance with the laws
of the Commonwealth of Virginia, the State of New York or the State of
North Carolina.
(xii) Each Aggregate Receivable is assignable by
the Seller, the Issuer and their successors and assigns without the
consent of any other Person (except any such consent that shall have
been obtained) and upon acquiring the Aggregate Receivables the Issuer
will have the right to pledge the Receivables without the consent of
any other Person and without any other restrictions on such pledge.
(xiii) The Seller has not taken (or omitted to
take) and will not take (or omit to take), and has no notice that any
other party has taken (or omitted to take) or will take (or omit to
take) any action that could impair the collectibility of any Aggregate
Receivable.
(xiv) Each Aggregate Receivable is, and the
creation thereof was, in compliance with all applicable laws rules and
regulations.
(xv) It is the intention of the Seller that the
transfer and assignment herein contemplated, taken as a whole,
constitute a sale and/or contribution and assignment of the Aggregate
Receivables from the Seller to the Issuer and that the Aggregate
Receivables shall not be part of the Seller's estate in the event of
the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. If and to the extent this Agreement does not create a
true sale of the Aggregate Receivables from the Seller to the Issuer,
however, this Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in the Aggregate
Receivables in favor of the Issuer, which security interest is prior
to all other Liens, and is enforceable as such as against creditors of
and purchasers from the Seller.
(xvi) The Aggregate Receivables constitute
"general intangibles" within the meaning of the applicable UCC.
(xvii) The Seller owns and has good and marketable
title to the Aggregate Receivables free and clear of any Liens of any
Person.
(xviii) The Seller has caused or will have caused,
within ten (10) days, the filing of all appropriate financing
statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security
interest in the Aggregate Receivables granted to the Issuer hereunder.
(xix) Other than the ownership interest
transferred, or the security interest granted, to the Issuer pursuant
to this Agreement, the Seller has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Aggregate
Receivables. The Seller has not authorized the filing of and is not
aware of any financing statement against the Seller that includes a
description of collateral covering the
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ other than any financing statement related to
the security interest granted to the Issuer hereunder or (ii) that has
been terminated.
(bb) Information. No document, certificate or report
furnished by the Seller, in writing pursuant to this Agreement, any other
Transaction Document or in connection with the transactions contemplated hereby
or thereby contains or will contain when furnished any untrue statement of a
material fact. There are no facts relating to and known by the Seller which
when taken as a whole, materially adversely affect the financial condition or
assets or business of the Seller, or which may impair the ability of the Seller
to perform its obligations under this Agreement or any other Transaction
Document, which have not been disclosed herein or in the certificates and other
documents furnished by or on behalf of the Seller pursuant hereto or thereto
specifically for use in connection with the transactions contemplated hereby or
thereby. All books, records and documents delivered or contributed to the
Issuer are and will be true, correct and complete.
(cc) No Deficiency Accumulation. The Seller has not
incurred any "accumulated funding deficiency" (as such term is defined under
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and
the Code) with respect to any "employee benefit plan" (as such term is defined
under ERISA) sponsored by the Seller.
(dd) Fair Consideration. The Seller received fair
consideration and reasonably equivalent value in exchange for the transfer of
the Aggregate Receivables to the Issuer.
(ee) Bulk Transfer. No sale, contribution, transfer,
assignment or conveyance of Aggregate Receivables by the Seller to the Issuer
contemplated by this Agreement will be subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
(ff) Name. The legal name of the Seller is as set forth
in this Agreement and the Seller does not have any tradenames, fictitious
names, assumed names or "doing business" names other than Nationwide Mortgage
Company, Destiny Financial Services and Golden Circle Financial Services.
(gg) Default. The Seller is not in default under any
material agreement, ontract, instrument or indenture to which the Seller is a
party or by which it or its properties is or are bound (including without
limitation, each REMIC Pooling Agreement), or with respect to any order of any
court, administrative agency, arbitrator or governmental body which would have
a material adverse effect on the transactions contemplated hereunder, and no
event has occurred which with notice or lapse of time or both would constitute
such a default with respect to any such agreement, contract, instrument or
indenture, or with respect to any such order of any court, administrative
agency, arbitrator or governmental body.
(hh) No Adverse Change. Since September 30, 2000, there
has been no change in the business, operations, financial condition, properties
or assets of the Seller which would have a material adverse effect on its
ability to perform its obligations under this Agreement or any other
Transaction Document or materially adversely affect the transactions
contemplated under this Agreement or any other Transaction Document, except as
disclosed in the reports filed
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by Oakwood Homes and its Affiliates since September 30, 2000 with the
Securities and Exchange Commission, listed on Schedule 2 attached hereto.
(ii) Repayment of Receivables. The Seller has no reason
to believe that at the time of the transfer of the Aggregate Receivables to the
Issuer pursuant hereto, the Aggregate Receivables will not be paid in full.
(jj) Amendments. Each amendment to each REMIC Pooling
Agreement provided to the Noteholders (a) is a true, correct and complete copy
of such amendment, (b) is in full force and effect and (c) is the legal, valid
and binding obligation of each party thereto, enforceable against each such
party in accordance with the terms thereof. Other than the amendments to the
REMIC Pooling Agreements that have been provided to the Noteholders, no other
amendments to any REMIC Pooling Agreement exist. Each REMIC Pooling Agreement,
as amended, is in full force and effect and no default exists thereunder. Each
REMIC Pooling Agreement has been amended by an amendment in substantially the
form of the form amendment attached as Exhibit A hereto that is identified as
applicable to that REMIC Pooling Agreement.
(kk) Mortgage Loans. Each of the representations and
warranties relating to the Assets made in the related REMIC Pooling Agreement
were true and correct at the time such representations and warranties were
made.
SECTION 5. REMEDIES UPON BREACH
The Issuer or the Seller, as the case may be, shall, and the Trustee
or any Noteholder may, inform the Issuer or the Seller (as applicable) and the
Trustee and the Noteholders promptly, in writing, upon the discovery of any
breach of the Seller's representations and warranties hereunder that pertain to
a Receivable, which breach materially and adversely affects the interests of
the Noteholders in such Receivable. Unless such breach shall have been cured or
waived within thirty (30) days after the earlier to occur of the discovery of
such breach by the Issuer or the Seller (as applicable) or receipt of written
notice of such breach by the Issuer or the Seller (as applicable), such that
the relevant representation and warranty shall be true and correct in all
material respects as if made on such day, and the Seller shall have delivered
to the Trustee an Officer's Certificate describing the nature of such breach
and the manner in which the relevant representation and warranty became true
and correct, the Seller shall indemnify the Issuer against and hold the Issuer
harmless from any cost, liability and expense, including without limitation,
reasonable attorneys' fees and expenses, whether incurred in enforcement
proceedings between the parties or otherwise, incurred as a result of, or
arising from, such breach which indemnification shall include, without
limitation, payment of an amount at least equal to the Release Payment for the
affected Receivable. This Section 5 sets forth the exclusive remedy for a
breach of representation or warranty pertaining to a Receivable.
Notwithstanding the foregoing, the breach of any representation and warranty
identified in Section 4(aa)(xv) through 4(aa)(xix), inclusive, shall not be
waived by the Issuer under any circumstances.
SECTION 6. [RESERVED]
SECTION 7. TERMINATION.
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This Agreement (a) may not be terminated prior to the termination of
the Indenture and (b) may be terminated at any time thereafter by either party
upon written notice to the other party.
SECTION 8. GENERAL COVENANTS OF SELLER.
The Seller covenants and agrees that from the Closing Date until the
termination of the Indenture.:
(a) RESERVED
(b) RESERVED
(c) Investments. The Seller hereby covenants that it
will not without the prior written consent of the Majority Noteholders (which
consent shall not be unreasonably conditioned, withheld or delayed), acquire or
hold any indebtedness for borrowed money of another person, or any capital
stock, debentures, partnership interests or other ownership interests or other
securities of any Person, other than (i) the Issuer, other special purpose,
bankruptcy remote limited liability companies or other special purpose,
bankruptcy remote, corporations, (ii) receivables of similar type to the
Aggregate Receivables, (iii) retail installment sales contracts and mortgage
notes and other similar consumer debt, and (iv) investments in its subsidiaries
or to acquire new subsidiaries in the consumer or commercial finance business.
(d) Merger. Without the prior written consent of the
Majority Noteholders (which consent shall not be unreasonably withheld or
delayed) enter into any transaction of merger, consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation, wind up or
dissolution), except for the merger of the Seller with and into Oakwood
Acceptance Corporation, LLC, a Delaware limited liability company, as described
in Section 4(r) above.
(e) Bankruptcy. The Seller shall not take any action in
any capacity to file any bankruptcy, reorganization or Insolvency Proceedings
against the Issuer, or cause the Issuer to commence any reorganization,
bankruptcy proceedings, or Insolvency Proceedings under any applicable state or
federal law, including without limitation any readjustment of debt, or
marshaling of assets or liabilities or similar proceedings. The Seller has not
engaged in and does not expect to engage in a business for which its remaining
property represents an unreasonably small capitalization. The Seller is not
transferring and will not transfer any of the Aggregate Receivables with an
intent to hinder, delay or defraud any Person.
(f) Legal Existence. The Seller shall do or cause to be
done all things necessary on its part to preserve and keep in full force and
effect its existence as a corporation in the jurisdiction of its incorporation,
and to maintain each of its licenses, approvals, registrations and
qualifications in all jurisdictions in which its ownership or lease of property
or the conduct of its business requires such licenses, approvals, registrations
or qualifications; except for failures to maintain any such licenses,
approvals, registrations or qualifications which, individually or in the
aggregate, would not have a material adverse effect on the ability of the
Seller or the Issuer to perform its obligations hereunder or under any of the
other Transaction Documents.
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(g) Compliance With Laws. The Seller shall comply in all
material respects with all laws, rules and regulations and orders of any
governmental authority applicable to its operation, the noncompliance with
which would have a material adverse effect on the business, financial condition
or results of operations of the Seller or on the ability of the Seller or the
Issuer to perform their obligations hereunder or under any of the other
Transaction Documents.
(h) Taxes. The Seller shall pay and discharge all taxes,
assessments and governmental charges or levies imposed upon the Seller or upon
its income and profits, or upon any of its property or any part thereof, before
the same shall become in default, provided that the Seller shall not be
required to pay and discharge any such tax, assessment, charge or levy so long
as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and the Seller shall have set aside on its books
adequate reserves with respect to any such tax, assessment, charge or levy so
contested, or so long as the failure to pay any such tax, assessment, charge or
levy would not have a material adverse effect on the ability of the Seller to
perform its obligations hereunder or under the REMIC Pooling Agreements.
(i) Financial Statements. Oakwood Homes shall maintain
its financial books and records in accordance with GAAP. The Seller shall
furnish to the Issuer and the Noteholders:
(i) Quarterly Statements. As soon as available
and in any event within 45 days after the end of each of the first
three calendar quarters of each fiscal year of Oakwood Homes, the
consolidated balance sheet of Oakwood Homes and the related
consolidated statements of income, shareholders' equity and cash
flows, each for the period commencing at the end of the preceding
fiscal year and ending with the end of such fiscal quarter, prepared
in accordance with GAAP consistently applied; and
(ii) Annual Statements. As soon as available and
in any event within 90 days after the end of each fiscal year of
Oakwood Homes, the audited consolidated balance sheets of Oakwood
Homes and the related consolidated statements of income, shareholder's
equity and cash flows for the fiscal year then ended, each prepared in
accordance with GAAP consistently applied and reported on by a firm of
nationally recognized independent public accountants.
(iii) In the event the Seller prepares and
distributes to third parties financial statements for any fiscal
period as set forth in (i) and (ii) above, the Seller shall deliver
such financial statements to the Issuer, the Noteholders and the
Trustee.
(j) No Change in Name or Location of Records. The Seller
covenants that it shall comply with its representation in Section 4(r) hereof.
(k) Separate Identity. The Seller hereby covenants and
agrees to take all actions necessary to maintain the Issuer's status as a
separate legal entity. The Seller conducts its business solely in its own name
and all written and oral communications of the Seller are made solely in the
name of the Seller. Neither the assets nor the creditworthiness of the Seller
is or are generally held out as being available for the payment of any
liability of the Issuer. The Seller views the Issuer as a separate legal
entity. The Seller is not liable for the payment of any
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debt of the Issuer.
(l) No Liens, Etc. Against Receivables and Trust
Property. The Seller hereby covenants and agrees not to create or suffer to
exist (by operation of law or otherwise), any Lien upon or with respect to, any
Aggregate Receivables or any of its interest therein, if any, or upon or with
respect to any of its interest in any Account, or assign any right to receive
income in respect thereof, except for the Lien created by the Indenture. The
Seller shall immediately notify the Trustee and the Noteholders of the
existence of any Lien on any Aggregate Receivables and the Seller shall defend,
at the Seller's expense, the right, title and interest of each of the Issuer,
the Trustee and the Noteholders in, to and under the Aggregate Receivables and
Trust Estate, against all claims of third parties.
(m) Amendments to REMIC Pooling Agreements. OAC, in its
capacity as seller under the REMIC Pooling Agreements, hereby covenants and
agrees not to amend the REMIC Pooling Agreements except for such amendments
that would not have an adverse effect upon the collectibility or timing of
payment of the Aggregate Receivables or the performance of its or the Issuer's
obligations under the Transaction Documents or otherwise adversely affect the
interest of the Noteholders, without the prior written consent of the Majority
Noteholders. OAC will, within five (5) Business Days following the
effectiveness of such amendments, deliver to the Trustee and the Noteholders
copies of all such amendments.
(n) Maintenance of Security Interest. The Seller will
from time to time, at its own expense, execute and file such additional
financing statements (including continuation statements) as may be necessary to
ensure that at any time, the interest of the Issuer, the Trustee and the
Noteholder in all of the Aggregate Receivables and the Receivables is fully
protected in accordance with the UCC.
(o) Losses on Accounts. To the extent that the Issuer
fails to make a deposit for losses and investment expenses relating to an
investment of funds in the Accounts as required pursuant to Sections 4.01 of
the Indenture, the Seller shall deposit such amount to such Accounts.
(p) Fidelity Bond and Errors and Omissions Insurance.
The Seller shall obtain and maintain at its own expense and keep in full force
and effect so long as any Notes are outstanding, a blanket fidelity bond and an
errors and omissions insurance policy with one or more Qualified Insurers
covering the Seller's officers and employees and other persons acting on behalf
of the Seller in connection with its activities under this Agreement meeting
the criteria required by the REMIC Pooling Agreement. The Seller shall cause
the Trustee, on behalf of the Noteholders, to be named as a loss payee on each
such fidelity bond and errors and omissions policy. Coverage of the Seller
under a policy or bond obtained by an Affiliate of the Seller and providing the
coverage required by this clause (p) shall satisfy the requirements of this
clause (p). The Seller will promptly report in writing to the Trustee any
material changes that may occur in their respective fidelity bonds, if any,
and/or their respective errors and omissions insurance policies, as the case
may be, and will furnish to the Trustee copies of all binders and polices or
certificates evidencing that such bonds, if any, and insurance policies are in
full force and effect.
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(q) Keeping of Records and Books of Account. The Seller
shall maintain accurate, complete and correct documents, books, records and
other information which is reasonably necessary for the collection of all
Aggregate Receivables (including, without limitation, records adequate to
permit the prompt identification of each new Aggregate Receivable and all
collections of, and adjustments to, each existing Aggregate Receivable).
(r) Compliance with REMIC Pooling Agreements. The Seller
shall not fail to comply with its obligations as the REMIC Servicer under each
of the REMIC Pooling Agreements, which failure would have a material adverse
effect on the interests of the Noteholders under the Indenture.
SECTION 9. PROTECTION OF TRUSTEE'S SECURITY INTEREST IN TRUST
ESTATE.
(a) OAC shall maintain accounts and records as to each
Aggregate Receivable accurately and in sufficient detail to permit the reader
thereof to know at any time following reasonable prior notice delivered to OAC,
the status of such Aggregate Receivable, including payments and recoveries made
and payments owing.
(b) OAC shall maintain its records so that, from and
after the time of the granting of the security interest under the Indenture in
the Receivables to the Trustee, OAC's records (including computer records any
back-up archives) that refer to any Receivables indicate clearly the interest
of the Trustee in such Receivables and that the Receivable is held by the
Trustee on behalf of the Noteholders. Indication of the Trustee's interest in a
Receivable shall be deleted from or modified on OAC's records when, and only
when, the Receivable has been paid in full or released from the lien of the
Indenture pursuant to the Indenture.
(c) If at any time the Issuer or OAC proposes to assign,
convey, grant a security interest in, or otherwise transfer any interest in
receivables to any prospective purchaser, lender or other transferee, OAC shall
give to such prospective acquirer, lender or other transferee computer tapes,
records or print-outs (including any restored from back-up archives) that, if
they refer in any manner whatsoever to any Receivable, indicate clearly that
such Receivable is subject to a security interest in favor of the Trustee
unless such Receivable has been paid in full, acquired or assigned pursuant to
the Indenture.
SECTION 10. INDEMNIFICATION.
(a) Without limiting any other rights that an
Indemnified Party (as defined herein) may have hereunder or under applicable
law, the Seller hereby agrees to indemnify each Indemnified Party from and
against any and all Indemnified Amounts which may be imposed on, incurred by or
asserted against an Indemnified Party in any way arising out of or relating to
any breach of the Seller's obligations under this Agreement or the ownership of
the Aggregate Receivables or in respect of any Aggregate Receivable, excluding,
however, Indemnified Amounts to the extent resulting from (x)the gross
negligence or willful misconduct on the part of such Indemnified Party or (y)
the failure of the applicable REMIC Trust to generate sufficient cash flow to
pay its Aggregate Receivables.
(b) Without limiting or being limited by the foregoing,
the Seller shall pay on demand to each Indemnified Party any and all amounts
necessary to indemnify such Indemnified
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Party from and against any and all Indemnified Amounts relating to or resulting
from:
(i) reliance on any representation or warranty
made by the Seller under or in connection with this Agreement (except
with respect to an Aggregate Receivable, as to which the Issuer's
remedies are set forth in Sections 5 and 6 hereof), any other
Transaction Document, any report or any other information delivered by
the Seller pursuant hereto, which shall have been incorrect in any
material respect when made or deemed made or delivered;
(ii) the failure by the Seller to comply with
any term, provision or covenant contained in this Agreement, or any
agreement executed by it in connection with this Agreement or any
other Transaction Document or with any applicable law, rule or
regulation with respect to any Aggregate Receivable, or the
nonconformity of any Aggregate Receivable with any such applicable
law, rule or regulation; or
(iii) the failure to vest and maintain vested in
the Issuer, or to transfer, to the Issuer, legal and equitable title
to and ownership of the Aggregate Receivables which are, or are
purported to be, Receivables, together with all collections in respect
thereof, free and clear of any adverse claim (except as permitted
hereunder) whether existing at the time of the transfer of such
Aggregate Receivable or at any time thereafter.
(c) Any Indemnified Amounts subject to the
indemnification provisions of this Section 10 shall be paid to the Indemnified
Party within five (5) Business Days following demand therefor. "Indemnified
Party" means any of the Issuer, the Trustee and the Noteholders. "Indemnified
Amounts" means any and all claims, losses, liabilities, obligations, damages,
penalties, actions, judgments, suits, and related reasonable costs and
reasonable expenses of any nature whatsoever, including reasonable attorneys'
fees and disbursements, incurred by an Indemnified Party with respect to this
Agreement as a result of a breach by the Seller as described in Section 10(a),
including without limitation, the enforcement hereof.
(d) Promptly after an Indemnified Party shall have been
served with the summons or other first legal process or shall have received
written notice of the threat of a claim in respect of which an indemnity may be
claimed against the Seller under this Section 10, the Indemnified Party shall
notify the Seller in writing of the service of such summons, other legal
process or written notice, giving information therein as to the nature and
basis of the claim, but failure so to notify the Seller shall not relieve the
Seller from any liability which it may have hereunder or otherwise except to
the extent that the Seller is prejudiced by such failure so to notify the
Seller. The Seller will be entitled, at its own expense, to participate in the
defense of any such claim or action and, to the extent that it may wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
Indemnified Party, and, after notice from the Seller to such Indemnified Party
to assume the defense of any such action, the Seller will not be liable to such
Indemnified Party under this Section 10 for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
of any such action unless, (i) the defendants in any such action include both
the Indemnified Party and the Seller, and the Indemnified Party (upon the
advice of counsel) shall have reasonably concluded that there may be legal
defenses available to it that are different from or additional to those
available to the Seller, or one or more Indemnified Parties, and which in the
reasonable judgment of such
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counsel are sufficient to create a conflict of interest for the same counsel to
represent both the Seller and such Indemnified Party, (ii) the Seller shall not
have employed counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party within a reasonable time after notice of
commencement of the action, or (iii) the Seller has authorized the employment
of counsel for the Indemnified Party at the expense of the Seller; then, in any
such event, described in clauses (i), (ii) and (iii) of this Section 10(d),
such Indemnified Party shall have the right to employ its own counsel in such
action, and in such event the reasonable fees and expenses of such counsel
shall be borne by the Seller; provided, however, that the Seller shall not in
connection with any such action or separate but substantially similar or
related actions arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm
of attorneys at any time for all Indemnified Parties. Each Indemnified Party,
as a condition of the indemnity agreement contained herein, shall use its
commercially reasonable efforts to cooperate with the Seller in the defense of
any such action or claim. The Seller shall not, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject matter
of such proceeding or threatened proceeding.
SECTION 11. MISCELLANEOUS.
(a) This Agreement may not be amended except by an
instrument in writing signed by the Seller and the Issuer. In addition, so long
as the Notes are outstanding, this Agreement may not be amended without the
prior written consent of the Majority Noteholders. Any such amendment requested
by Seller shall be at the expense of the Seller.
(b) The covenants, agreements, rights and obligations
contained in this Agreement shall be binding upon the successors and assigns of
the Seller and shall inure to the benefit of the successors and assigns of the
Issuer, and all persons claiming by, through or under the Issuer.
(c) Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
conflicts of laws provisions thereof.
(e) This Agreement may be executed in several
counterparts and all so executed shall constitute one agreement binding on all
parties hereto, notwithstanding that all the parties have not signed the
original or the same counterpart. Any counterpart hereof signed by a party
against whom enforcement of this Agreement is sought shall be admissible into
evidence as an original hereof to prove the contents thereof.
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(f) Notwithstanding anything to the contrary contained
in this Agreement, the representations and warranties identified in Sections
4(aa)(xv) through 4(aa)(xix), inclusive, shall survive the termination of the
Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Receivables
Contribution Agreement to be duly executed as of the date first above written.
OAKWOOD ACCEPTANCE CORPORATION, as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
OAKWOOD ADVANCE RECEIVABLES COMPANY,
L.L.C., as Issuer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
Signature Page for Receivables Contribution Agreement
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[Schedules and Exhibits Omitted.]