EXECUTION VERSION
EXHIBIT 10.11
CLASS A NOTE PURCHASE AGREEMENT
Dated as of January 23, 2003
among
OMI NOTE TRUST 2003-A
as Issuer,
OAKWOOD ACCEPTANCE CORPORATION, LLC
as Seller and Subservicer,
OAKWOOD SERVICING HOLDINGS CO., LLC
as 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 2003-A
Class A Asset Backed Notes, Series 2003-A
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Table of Contents
Page
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SECTION 1. DEFINITIONS.......................................................................................... 1
1.1 Definitions........................................................................................ 1
1.2 Other Definitional Provisions...................................................................... 9
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................................................... 9
2.1 Purchases.......................................................................................... 9
2.2 Reductions of Commitments.......................................................................... 10
2.3 Fees, Expenses, Payments, Etc...................................................................... 11
2.4 Indemnification.................................................................................... 12
2.5 Events of Default.................................................................................. 14
2.6 Notification of Note Monthly Interest.............................................................. 15
SECTION 3. CONDITIONS PRECEDENT................................................................................. 15
3.1 Condition to Initial Purchase...................................................................... 15
3.2 Condition to Borrowings............................................................................ 17
SECTION 4. REPRESENTATIONS AND WARRANTIES....................................................................... 17
4.1 Representations and Warranties of OAC ............................................................. 17
4.2 Representations and Warranties of the Issuer....................................................... 20
4.3 Representations and Warranties of the Transferor................................................... 21
4.4 Representations and Warranties of the Depositor.................................................... 23
SECTION 5. COVENANTS............................................................................................ 25
5.1 Covenants ......................................................................................... 26
SECTION 6. INCREASED COSTS, INCREASED CAPITAL, ETC.............................................................. 32
6.1 Increased Costs.................................................................................... 32
6.2 Increased Capital.................................................................................. 32
6.3 Taxes.............................................................................................. 33
6.4 Nonrecourse Obligations; Limited Recourse.......................................................... 35
SECTION 7. THE AGENT............................................................................................ 36
7.1 Appointment........................................................................................ 36
7.2 Delegation of Duties............................................................................... 36
7.3 Exculpatory Provisions............................................................................. 36
7.4 Reliance by Agent.................................................................................. 37
7.5 Notices............................................................................................ 37
7.6 Non-Reliance on Agent and Other Purchasers......................................................... 37
7.7 Indemnification.................................................................................... 38
7.8 Agent in Its Individual Capacities................................................................. 38
7.9 Successor Agent.................................................................................... 38
SECTION 8. SECURITIES LAWS; TRANSFERS........................................................................... 39
8.1 Transfers of Notes................................................................................. 39
SECTION 9. MISCELLANEOUS........................................................................................ 42
9.1 Amendments and Waivers............................................................................. 42
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Table of Contents
(continued)
Page
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9.2 Notices............................................................................................ 43
9.3 No Waiver; Cumulative Remedies..................................................................... 45
9.4 Successors and Assigns............................................................................. 45
9.5 Successors to Servicer............................................................................. 45
9.6 Counterparts....................................................................................... 46
9.7 Severability....................................................................................... 46
9.8 Integration........................................................................................ 46
9.9 Governing Law...................................................................................... 46
9.10 Termination........................................................................................ 46
9.11 Limited Recourse; No Proceedings................................................................... 46
9.12 Survival of Representations and Warranties......................................................... 47
9.13 Submission to Jurisdiction; Waivers................................................................ 47
9.14 WAIVERS OF JURY TRIAL.............................................................................. 48
9.15 Limitation of Liability of Owner Trustee........................................................... 48
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LIST OF EXHIBITS
EXHIBIT A Form of Investment Letter
EXHIBIT B Form of Joinder Supplement
EXHIBIT C Form of Transfer Supplement
EXHIBIT D Form of Agreement re Bankruptcy
CLASS A NOTE PURCHASE AGREEMENT, dated as of January 23, 2003,
by and among OMI NOTE TRUST 2003-A, a Delaware statutory trust (the "Issuer"),
OAKWOOD ACCEPTANCE CORPORATION, LLC, a Delaware limited liability company
("OAC"), OAKWOOD SERVICING HOLDINGS CO., LLC, a Nevada limited liability company
("OSHC"), 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 JPMorgan Chase 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 January 23, 2003 (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 2003-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.
"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 January 23, 2003.
"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. The Commitment of Credit Suisse
First Boston, New York Branch, will be reduced by the aggregate outstanding
principal amount of the Class A Notes and Senior Notes issued by the OMI Note
Trust 2001-A.
"Commitment Expiration Date" shall mean February 15, 2004.
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"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.
"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, the Servicer or the
Subservicer 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
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, the Servicer or the Subservicer 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
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(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.
"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
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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, the Subservicer 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.
"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
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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 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,
the Subservicer 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
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Payment Date calculated at the Note Interest Rate with respect to the Interest
Period equivalent to such Accrual Period, (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 and (c) any installment of the
program Fee due under the Fee Letter on the Payment Date with respect to such
Accrual Period, 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.
"OAC Subservicing Agreement": The Subservicing Agreement dated
as of January 23, 2003, between the Servicer and OAC, as Subservicer
"OSHC" has the meaning specified in the preamble to this
Agreement.
"Other Parties" has the meaning assigned to such term in
subsection 6.4(b).
"Owner Trustee" means Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under the Trust Agreement, and any successor thereto.
"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.
"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.
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"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 OAC Subservicing 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).
"Sale and Servicing Agreement" means the sale and servicing
agreement, dated as of January 23, 2003, among the Issuer, the Seller, the
Servicer, the Subservicer, 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).
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"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
January 23, 2003, between the Depositor and the Owner Trustee.
"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 $_____________ 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
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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 once 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 third 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 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
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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 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.
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(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 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) 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
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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 Subservicer,
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 or
Subservicer 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 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
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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 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 in the Indenture with respect to the Issuer,
automatically the Commitments shall immediately
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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 Subservicer,
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 Subservicer, 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 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, 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, the
Transferor, the Depositor and the Owner Trustee, certifying the names and true
signatures of the officers
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authorized to sign this Agreement and the other Related Documents and any other
documents to be delivered by it hereunder or thereunder;
(iii) A certified copy of the charter or limited
liability company agreement of each of OAC, the Transferor and the Depositor, a
certificate as to the good standing of OSHC from the Secretary of State of the
State of Nevada and a certificate as to the good standing of each of OAC, the
Transferor and the Depositor from the Secretary of State of the State of
Delaware, in each case dated as of a recent date;
(iv) 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;
(v) 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;
(vi) Completed requests for information, dated on
or before the Closing Date, in the State of Delaware that name the Issuer, the
Transferor, the Depositor or OAC as debtor, together with copies of such other
financing statements;
(vii) An opinion of Hunton & Xxxxxxxx, special
counsel to OAC, dated the Closing Date, in form and substance satisfactory to
the Agent;
(viii) An opinion of Xxxxxxxx, Xxxxxx & 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;
(ix) 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;
(x) A favorable written opinion of Loeb & Loeb,
counsel for the Transferor, dated the Closing Date, in form and substance
satisfactory to the Agent;
(xi) A copy of the documentation evidencing the
release of all liens attaching to the Receivables pursuant to previous
financings; and
(xii) 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.
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(h) Oakwood Homes Corporation ("OHC") 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;
(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;
(e) if requested by the Agent, in its sole discretion, a
Person designated by the Agent shall have examined the files relating to the
Eligible Receivables, including, without limitation, the Contract Files in the
possession of the Custodian, and the Agent shall be satisfied in all respects
with the results of such examination. (The Agent agrees, so long as it has not
received notice that any condition to such Borrowing will not be satisfied, to
use reasonable efforts to commence such an examination promptly after any notice
of a requested Borrowing is received by the Agent pursuant to Section 2.1(c),
provided that the commencement of such examination shall not be deemed to
evidence the satisfaction of, or waiver by the Agent or any Purchaser of, any
other condition precedent to such Borrowing); and
(f) that portion of the Final DIP Financing providing a
$140,000,000 facility for general corporate purposes shall be in full force and
effect.
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,
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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 and except such consents, licenses, approvals or authorizations
of, or registrations with, Governmental Authorities which have already been
obtained.
(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 except for the bankruptcy filing made by the Seller and the
Subservicer on November 15, 2002.
(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, September 30, 2000, September 30, 2001 and September
30, 2002.
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(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.
(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
November 15, 2002.
(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 Xxxxx 00, Xxxxxx Xxxxxx Code (Bankruptcy), except as disclosed
in such Schedule IV.
- 19 -
(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).
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 statutory 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,
- 20 -
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 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
- 21 -
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 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
- 22 -
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 no 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 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.
- 23 -
(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 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
- 24 -
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.
4.5 Representations and Warranties of the Servicer. The Servicer
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 Nevada, 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 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
- 25 -
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 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 Servicer 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 Servicer is at the address indicated in Section 9.2 hereof.
SECTION 5. COVENANTS
5.1 Covenants. Each of the Seller, the Servicer, the Subservicer,
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
- 26 -
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, (i) 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
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, the Servicer and the Subservicer
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, the Servicer or the Subservicer, as applicable;
(e) Each of the Seller, the Servicer and the Subservicer
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, the
Servicer or the Subservicer, as applicable ;
(f) the Issuer, the Depositor, the Transferor, the
Seller, the Servicer and the Subservicer 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.
- 27 -
(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;
(i) the Seller, the Depositor, the Transferor, Issuer,
the Servicer and the Subservicer 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, the Servicer nor the Subservicer 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 Seller, the Depositor,
the Transferor, the Issuer, the Servicer or the Subservicer, (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;
(k) OSHC 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 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
- 28 -
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 conformity with
generally accepted accounting principles and that the examination had been made
in accordance with generally accepted auditing standards; and
(ii) promptly upon delivery to such lenders,
copies of all reports provided to the lenders party to both the Interim DIP
Financing and the Final DIP Financing; and
(iii) promptly, notice of and a description of any
changes in servicing staffing or management and information on cash collections
and performance of the business of OHC and OAC; and
(iv) 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.
- 29 -
(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, 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).
(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.
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(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.
(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.
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(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 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
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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 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.
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(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.
(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.
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(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 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,
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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
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, the Subservicer 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, the Subservicer 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, the Subservicer
or the Indenture Trustee.
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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 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
Subservicer, 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, the Subservicer 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, the Servicer and the Subservicer 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, the Servicer and the Subservicer.
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
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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, the Issuer, the Servicer or the Subservicer 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
Subservicer, 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, the Servicer and the Subservicer 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 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
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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, the Servicer and the
Subservicer 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 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),
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(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.
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
- 40 -
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.
(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
- 41 -
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.
(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 Subservicer, 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
- 42 -
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 2003-A
c/o Wilmington Trust Company
Xxxxxx Square North
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration/
OMI Note Trust 2003-A
Telecopier No.: (000) 000-0000
OAC Oakwood Acceptance Corporation, LLC
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Treasurer
Telecopier No.: (000) 000-0000
and
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
OSHC Oakwood Servicing Holdings Co., LLC
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Treasurer
Telecopier No.: (000) 000-0000
and
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
- 43 -
The Depositor Oak Leaf Holdings, LLC
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Treasurer
Telecopier No.: (000) 000-0000
and
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
The Indenture Trustee: JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, Xxxxx 0
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services
Telecopier No.: (000) 000-0000
The Transferor: Ginkgo Corporation
c/o Lord Securities Corporation
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, Vice President
Telecopier No.: (000) 000-0000
The Agent Credit Suisse First Boston, New York Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Finance Department
Telecopier No.: (000) 000-0000
(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: IRVTUS3SN
ABA# 000-000-000 (or CHIPS 0001)
A/C# 890-038-7025
A/C Name: Alpine Iss/Red
Ref. Oakwood
- 44 -
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 Subservicer, 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 Subservicer, 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 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.
- 45 -
(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.
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 Subservicer, 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
- 46 -
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 Subservicer, 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 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 Subservicer, 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 SUBSERVICER, 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;
- 47 -
(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 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 XXX IN
ANY OTHER JURISDICTION.
9.14 WAIVERS OF JURY TRIAL. EACH OF THE SELLER, THE SERVICER, THE
SUBSERVICER, 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.
- 48 -
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 2003-A
By Wilmington Trust Company,
not in its individual capacity, but solely
as Owner Trustee
By:________________________________________
Name:
Title:
OAKWOOD ACCEPTANCE CORPORATION, LLC,
as Seller and Subservicer
By:________________________________________
Name:
Title:
OAKWOOD SERVICING HOLDINGS CO., LLC,
as Servicer
By:________________________________________
Name:
Title:
GINKGO CORPORATION,
as Transferor
By:________________________________________
Name:
Title:
OAK LEAF HOLDINGS, LLC,
as Depositor
By:________________________________________
Name:
Title:
- 00 -
XXXXXX XXXXXX XXXXX XXXXXX, XXX XXXX
BRANCH, as Agent
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
- 50 -
EXHIBIT A
FORM OF INVESTMENT LETTER
[Date]
OMI Note Trust 2003-A
c/o Wilmington Trust Company
Xxxxxx Square North
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Oak Leaf Holdings, LLC
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Oakwood Acceptance Corporation, LLC
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Oakwood Servicing Holdings Co., LLC
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
JPMorgan Chase Bank, as Indenture Trustee
0 Xxx Xxxx Xxxxx, Xxxxx 0
Xxx Xxxx, XX 00000
Ginkgo Corporation
c/o Lord Securities Corporation
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Vice President
Credit Suisse First Boston, New York Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re OMI Note Trust 2003-A
Asset Backed Notes, Series 2003-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 January 23, 2003 (as in effect, the "Class A
Note Purchase Agreement"), among OMI Note
Trust 2003-A, as Issuer, Oakwood Acceptance Corporation, LLC, as Seller and
Subservicer, Oakwood Servicing Holdings Co., LLC, as 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 Issuer (within the meaning of Rule
3c-5 and the Investment Company Act) or a company owned exclusively by
knowledgeable employees.
- 2 -
(e) The Acquiror is not, and is not purchasing Notes on
behalf of, 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.
Very truly yours,
[NAME OF ACQUIROR]
By: _________________________
Name:
Title:
- 3 -
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 2003-A (the "Issuer"), Oakwood
Acceptance Corporation, LLC, as Seller (in such capacity, the "Seller") and
Subservicer, Oakwood Servicing Holdings Co., LLC, as 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 January 23, 2003, among OMI Note Trust 2003-A, as Issuer, Oakwood
Acceptance Corporation, LLC, as Seller and Subservicer, Oakwood Servicing
Holdings Co., LLC, as 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, 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
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.
- 2 -
(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 January 23, 2003,
among OMI Note Trust 2003-A, as Issuer, Oakwood Acceptance
Corporation, LLC, as Seller and Subservicer, Oakwood Servicing
Holdings Co., LLC, as 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:]
- 1 -
OMI NOTE TRUST 2003-A,
as Issuer
By: Wilmington Trust Company,
not in its individual capacity,
but solely as Owner Trustee
By: ___________________________
Name:
Title:
OAKWOOD ACCEPTANCE CORPORATION, LLC,
as Seller and Subservicer
By:_________________________________
Name:
Title:
OAKWOOD SERVICING HOLDINGS CO., LLC,
as Servicer
By:_________________________________
Name:
Title:
GINKGO CORPORATION,
as Transferor
By:_________________________________
Name:
Title:
OAK LEAF HOLDINGS, LLC,
as Depositor
By:_________________________________
Name:
Title:
- 2 -
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Agent
By:________________________
Name:
Title:
By: _______________________
Name:
Title:
- 3 -
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:
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 January 23, 2003, among OMI Note Trust 2003-A, as Issuer,
Oakwood Acceptance Corporation, LLC, as Seller and Subservicer, Oakwood
Servicing Holdings Co., LLC, as 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:
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 January 23, 2003, among OMI Note Trust 2003-A, as Issuer, Oakwood
Acceptance Corporation, LLC, as Seller and Subservicer, Oakwood Servicing
Holdings Co., LLC, as 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 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 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
- 2 -
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
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,
- 3 -
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 January 23, 2003,
among OMI Note Trust 2003-A, Oakwood Acceptance Corporation,
LLC, as Seller and Subservicer, Oakwood Servicing Holdings
Co., LLC, as 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:
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: _____%
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:
_________________________ _____%
_________________________ _____%
_________________________ _____%
Aggregate Commitments of Liquidity Providers after Sale $____________
- 2 -
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:
- 3 -
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 January 23, 2003, among OMI Note Trust 2003-A, as Issuer,
Oakwood Acceptance Corporation, LLC, as Seller and Subservicer, Oakwood
Servicing Holdings Co., LLC, as 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:
