SALES AGREEMENT
---------------
THIS SALES AGREEMENT (this "Agreement"), made as of _____ 1, _____, by
and between Oakwood Mortgage Investors, Inc., a Nevada corporation ("OMI"), and
Oakwood Acceptance Corporation, a North Carolina corporation ("OAC" or the
"Seller"), recites and provides as follows:
RECITALS
1. Schedule IA attached hereto (the "Contract Schedule") and
made a part hereof lists manufactured housing retail installment sales contracts
(the "Contracts") secured by units of manufactured housing ("Manufactured
Homes"). Schedule IB attached hereto (the "Mortgage Loan Schedule" and together
with the Contract Schedule, the "Asset Schedule") and made a part hereof lists
mortgage loans secured by first liens on the real estate to which the related
Manufactured Homes are deemed permanently affixed (the "Mortgage Loans"). The
Contracts and Mortgage Loans listed on Schedules IA and IB are currently, or
will be, owned by the Seller, and the Seller desires to sell such Assets to OMI.
2. OMI desires to purchase the Assets and intends immediately
thereafter to transfer the Assets to OMI Trust ___-__ (the "Trust") pursuant to
the terms of a pooling and servicing agreement (the "Series Agreement"), dated
as of ____ 1, ____, by and among OMI, OAC, as servicer (the "Servicer"), and
____________________________________, as trustee (the "Trustee"). Such Series
Agreement will incorporate by reference OMI's Standard Terms to Pooling and
Servicing Agreement (May 1999 Edition) (the "Standard Terms" and, together with
the above-referenced Series Agreement, the "Pooling and Servicing Agreement").
3. Pursuant to the terms of the Pooling and Servicing
Agreement, the Trust will issue securities evidencing 100% of the beneficial
ownership interest in the Trust to OMI in consideration of OMI's deposit of the
Assets into the Trust.
4. Securities to be issued by the Trust to OMI will be
designated as the Senior/Subordinated Pass-Through Certificates, Series ____-__,
Classes [A-1, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X and R] Certificates and shall
be collectively referred to herein as the "Certificates."
5. The Class [A-1, X-0, X-0, X-0, X-0, X-0, X-0 and B-2]
Certificates (the "Offered Certificates") shall be sold pursuant to a terms
agreement dated _____ __, ____ (the "Terms Agreement" and, together with OMI's
Underwriting Agreement Standard Provisions (May 1999), the "Underwriting
Agreement"), among OMI, OAC and ___________________ and _____________________
(the "Underwriters"), and will be offered publicly for sale by the Underwriters
pursuant to a prospectus supplement dated _____ __, ____ (the "Prospectus
Supplement"), and the related prospectus, dated _____ __, ____ (together with
the Prospectus Supplement, the "Prospectus").
6. The Class [X and Class R] Certificates (the "Private
Certificates") will be sold by OMI to Oakwood Financial Corporation, a Nevada
corporation (the "Purchaser").
7. Capitalized terms used and not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the above premises, mutual promises
herein made and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. SALE AND PURCHASE.
(a) Subject to the terms and conditions of this Agreement, the Seller
agrees to sell, and OMI agrees to purchase, on the date of the issuance of the
Certificates, which is expected to be on or about ____ __, ____ (the "Closing
Date"), Assets having an aggregate Scheduled Principal Balance as of the
applicable Cut-Off Date, of approximately $___,___,___.
(b) The Seller and OMI have agreed upon which of the contracts and
mortgage loans owned by the Seller are to be purchased by OMI pursuant to this
Agreement, and the Seller has prepared, or provided information to OMI enabling
it to prepare, the schedules attached hereto as Schedule IA and Schedule IB
identifying all of the Assets to be purchased by OMI on the Closing Date and
describing such Assets. The Seller shall, with OMI's consent, amend or modify,
or provide information to OMI enabling it to amend or modify, Schedule IA and
Schedule IB on or prior to the Closing Date if necessary to reflect the Assets
actually transferred by the Seller and accepted by OMI on such date. Schedule IA
and Schedule IB as so amended or modified (collectively, the "Closing
Schedule"), shall conform to the requirements of OMI as set forth in this
Agreement and to the definition of "Asset Schedule" under the Standard Terms,
and shall be used as the definitive Asset Schedule attached as an exhibit to the
Pooling and Servicing Agreement.
(c) The sale of the Assets shall be effected pursuant to the Assignment
of Assets substantially in the form attached hereto as Exhibit A (the
"Assignment of Assets").
SECTION 2. PURCHASE PRICE.
(a) On the Closing Date, as full consideration for the Seller's sale of
the Assets to OMI, OMI will pay to the Seller $____________________.
2
(b) OMI or any assignee or transferee of OMI (which may include the
Trustee acting on behalf of the Certificateholders) shall be entitled to all
Monthly Payments due after the applicable Cut-Off Date, and all Principal
Prepayments and other unscheduled collections of principal collected in respect
of the Assets on or after the applicable Cut-off Date. All Monthly Payments due
on or before the applicable Cut-off Date and collected on or after the
applicable Cut-off Date shall belong to the Seller.
(c) Pursuant to the Pooling and Servicing Agreement, OMI will transfer
and assign all of its right, title and interest in and to the Assets to the
Trustee for the benefit of the Holders of the Certificates in consideration of
the issuance of the Certificates to OMI.
SECTION 3. TRANSFER OF THE ASSETS.
(a) TRANSFER OF OWNERSHIP. Upon the sale of the Assets, the ownership
of each Asset and the related Asset Documents shall be vested in OMI, and the
ownership of all other records and documents with respect to any Asset prepared
by or which come into the possession of the Seller shall immediately vest in OMI
upon such preparation or possession. The Seller shall retain, in its capacity as
the Servicer, any documents that come into its possession with respect to the
Contracts following the sale of the Assets to OMI and shall hold any such
documents for the benefit of OMI, its successors and assigns. The Seller shall
promptly deliver to the Trustee or retain in its capacity as the Servicer, as
appropriate, any documents that come into its possession with respect to the
Mortgage Loans following the sale of the Assets to OMI. Prior to such delivery,
the Seller shall hold any such documents for the benefit of OMI, its successors
and assigns.
All documents with respect to any Asset in the possession of OAC
following the execution by OAC of the Pooling and Servicing Agreement shall be
held by OAC, in its capacity as Servicer, as bailee and agent for OMI, its
successors and assigns and shall only be released in accordance with the terms
of the Pooling and Servicing Agreement.
(b) DELIVERY OF MORTGAGE LOAN FILES. Not later than three Business Days
prior to the Closing Date the Seller shall deliver to
____________________________, as trustee (the "Trustee"), each of the Mortgage
Loan Documents required to be included in the Trustee Mortgage Loan File for
each Mortgage Loan. The Mortgage Note for each Mortgage Loan shall be endorsed
without recourse to the Trustee (as the designee of OMI), and the Mortgage for
each Mortgage Loan shall be assigned to the Trustee. Each endorsement of a
Mortgage Note to the trustee shall be in the following form:
3
WITHOUT RECOURSE,
PAY TO THE ORDER OF
[---------------------------------------]
AS TRUSTEE u/a DATED AS OF _________ __, ___
Each assignment of a Mortgage relating to a Mortgage Loan shall be made
to "___________________________, AS TRUSTEE u/a w/Oakwood Mortgage Investors,
Inc. and Oakwood Acceptance Corporation dated as of ____ __, ____."
Prior to the transfer and sale of the Mortgage Loans pursuant to this
Agreement, all Mortgage Loan Documents delivered to the Trustee shall be held by
the Trustee for the benefit of the Seller, and the possession by the Trustee of
such Mortgage Loan Documents will be at the will of the Seller and will be in a
custodial capacity only. Following the transfer and sale of the Mortgage Loans
from the Seller to OMI in accordance with the terms and upon satisfaction of the
conditions of this Agreement, the Trustee will hold all Mortgage Loan Documents
delivered to it hereunder for the benefit of OMI, as its agent and bailee. The
Trustee will act on OMI's behalf as a custodian for the receipt and custody of
all Trustee Mortgage Loan Files and, after the transfer of the Mortgage Loans
from OMI to the Trust, the Trustee will hold all Mortgage Loan Documents
delivered to it hereunder as custodian in order to effect the transfer and sale
of the Mortgage Loans from OMI to the Trust.
(c) EXAMINATION OF CONTRACT DOCUMENTS. The Servicer shall review the
Contract Files for each Contract in accordance with Section 2.02(b) of the
Standard Terms to confirm that each Contract File is complete, that none of the
Contract Documents is materially defective, and that the documents included in
each Contract File conform to the description thereof contained in the Contract
Schedule. If the Seller receives written notice or obtains actual knowledge that
a Contract File is incomplete or defective in any material respect, or of any
material discrepancy between any Contract and the Contract Schedule, which
incompleteness, defect or discrepancy materially and adversely affects the
Trustee's interest in any Contract, the Seller must cure, repurchase or
substitute for the affected Contract as provided in Section 7(b) hereof.
Notwithstanding any of the foregoing, if the only problem discovered in respect
of a Contract is an overstatement in the Contract Schedule of the Cut-off Date
Principal Balance of the Contract, the Seller may cure such discrepancy by
depositing cash into the Certificate Account in the amount of such overstatement
prior to the first Distribution Date.
(d) EXAMINATION OF MORTGAGE LOAN DOCUMENTS; ACCEPTANCE OF MORTGAGE
LOANS. Prior to the Closing Date the Seller shall either (i) deliver to OMI or
its designee in escrow, for examination, the Mortgage Loan Documents pertaining
to each Mortgage Loan, or (ii) make such Mortgage Loan Documents available to
OMI or its designee for examination at the Seller's offices or at such other
place as the Seller shall specify. OMI, the Trustee, or a designee of any such
entity may review the Mortgage Loan Documents.
4
Prior to the Closing Date the Trustee shall review the documents
delivered pursuant to Section 3(b) hereof to ascertain that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule, (i) all documents required to be
delivered by the Seller pursuant to such Section 3(b) have been received, (ii)
such documents appear regular on their face and relate to such Mortgage Loan,
and (iii) the information as to the Mortgage Loan set forth in the Mortgage Loan
Schedule accurately reflects the information set forth in the corresponding
Trustee Mortgage Loan File. An additional review shall be conducted by the
Trustee prior to the first anniversary of the Closing Date to determine that all
Mortgage Loan Documents required to be included in the Trustee Mortgage Loan
File are included therein. If at any time OMI or the Trustee discovers or
receives notice that any Mortgage Loan Document is missing or defective in any
material respect with respect to any Mortgage Loan, or that there exists any
material discrepancy between the Mortgage Loan Documents and the Mortgage Loan
Schedule, it shall promptly notify the Seller in writing thereof. Upon its
receipt of notice of such incompleteness, defect or discrepancy, the Seller must
cure, repurchase or substitute for the affected Mortgage Loan to the extent
provided in Section 7(b) hereof. Notwithstanding any of the foregoing, if the
only problem discovered in respect of a Mortgage Loan is an overstatement in the
Mortgage Loan Schedule of the Cut-off Date Principal Balance of the Mortgage
Loan, the Seller may cure such discrepancy by depositing cash into the
Certificate Account in the amount of such overstatement prior to the first
Distribution Date. At the time of any such repurchase or substitution, the
Trustee shall release documents in its possession relating to such Mortgage Loan
to the Seller. The fact that OMI, the Trustee or a designee of either entity has
conducted or has failed to conduct any partial or complete examination of the
Mortgage Loan Documents prior to the Closing Date shall not affect the rights of
OMI (or any assignee or successor thereof) to demand repurchase or other relief
as provided herein.
(e) RECORDATION OF ASSIGNMENTS OF MORTGAGE. Subject to the sale of the
Mortgage Loans by the Seller to OMI in accordance with the terms of this
Agreement, OMI hereby authorizes and instructs the Seller, and the Seller hereby
agrees, to record (or to cause one of its affiliates to record) all Assignments
with respect to the Mortgage Loans required to be contained in the Trustee
Mortgage Loan File pursuant to the Standard Terms in the public recording office
for the jurisdiction in which the related Mortgaged Property is located. All
recording fees relating to the recordation of the Assignments as described above
shall be paid by the Seller or an affiliate of the Seller. If the Trustee does
not receive, within the time specified in the Pooling and Servicing Agreement,
evidence satisfactory to it of such recording with respect to any Mortgage Loan,
or in the alternative, an Opinion of Counsel acceptable to OMI to the effect
that such recording is not required to protect the right, title and interest of
the Trustee in any such Mortgage Loan, the Seller shall, in cooperation with the
Servicer, correct or cure any such omission.
5
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
(a) The Seller hereby represents and warrants to OMI as of the date of
this Agreement, or as of such other date as is specifically provided, as
follows:
(1) The Seller has been duly incorporated and is validly
existing and in good standing under the laws of the State of North
Carolina and is duly qualified to do business and in good standing
under the laws of each jurisdiction that requires such qualification
wherein it owns or leases any material properties (except where the
failure so to qualify would not have a material adverse effect on the
Seller). The Seller has the full power and authority (corporate and
other) to own its properties and conduct its business as its business
is presently conducted.
(2) The Seller has the full power, authority and legal right
to transfer and convey the Assets to OMI, and has the full power,
authority (corporate and other) and legal right to execute and deliver,
engage in the transactions contemplated by, and perform and observe the
terms and conditions of, this Agreement.
(3) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and (assuming the due
authorization, execution and delivery hereof by OMI) constitutes the
valid, legal and binding agreement of the Seller, enforceable against
the Seller in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar
laws affecting creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is sought in a
proceeding in equity or at law.
(4) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority
or court is required, under federal laws or the laws of the State of
North Carolina, for the execution, delivery and performance of or
compliance by the Seller with this Agreement or the consummation by the
Seller of any other transaction contemplated hereby.
(5) Neither the execution and delivery of this Agreement by
the Seller, nor the consummation by the Seller of the transactions
herein contemplated, nor compliance with the provisions hereof by the
Seller, will (A) conflict with or result in a breach of, or constitute
a default under, any of the provisions of the Seller's articles of
incorporation or by-laws, or any law, governmental rule or regulation,
or any judgment, decree or order binding on the Seller or any of its
properties, or any of the provisions of any indenture, mortgage, deed
of trust, contract or other instrument to which the Seller is a party
or by which the Seller is bound or (B) result in the creation or
imposition of any lien, charge or encumbrance which would have a
material adverse effect upon any of the Seller's
6
properties pursuant to the terms of any such indenture, mortgage, deed
of trust, contract or other instrument.
(6) The Seller is not, and with passage of time does not
expect to become, insolvent or bankrupt.
(7) No officer's certificate, statement or other information
furnished in writing or report delivered by the Seller to OMI or to any
affiliate or designee of OMI or to the Trustee for use in connection
with OMI's or the Trust's purchase of the Assets and the transactions
contemplated hereunder will, to the knowledge of the Seller, contain
any untrue statement of a material fact, or omit a material fact
necessary to make the information, certificate, statement or report not
misleading.
(8) The Seller has delivered to OMI financial statements as to
its last two complete fiscal years. Each such financial statement
fairly presents the pertinent results of operations and changes in
financial position for each of such periods and the financial position
at the end of each such period of the Seller and its subsidiaries, and
has been prepared in accordance with generally accepted accounting
principles consistently applied throughout the period involved, except
as set forth in the notes thereto.
(9) There has been no change in the business, operations,
financial condition, properties or assets of the Seller since the date
of the Seller's financial statements described in the preceding
paragraph which would have a material adverse effect on the Seller's
ability to perform its obligations under this Agreement.
(10) The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Assets to OMI.
(11) There is no litigation pending or, to the Seller's
knowledge, threatened against the Seller that would reasonably be
expected to affect adversely the transfer of the Assets, the issuance
of the Certificates, or the execution, delivery, performance or
enforceability of this Agreement or have a material adverse effect on
the financial condition of the Seller.
(12) The Seller will treat the transfer of the Assets to OMI
as a sale on its books and records in accordance with generally
accepted accounting principles.
(13) The Seller is, or, immediately prior to the sale of the
Assets to OMI, the Seller will be, the sole owner of, and will have
good and marketable title to, the Assets, subject to no prior lien,
mortgage, security interest, pledge, charge or other encumbrance,
7
except any lien to be released prior to or concurrently with the
purchase of the Assets by OMI. Following the sale of the Assets, OMI
will own such Assets, free and clear of any prior lien, mortgage,
security interest, pledge, charge or other encumbrance (assuming, with
respect to each Asset secured by a Real Property or a Mortgaged
Property located in a jurisdiction in which recordation of an
assignment is necessary to transfer a lien on the Real Property or
Mortgaged Property, that an Assignment of the related Mortgage from the
Seller to OMI, or its designee, is so recorded), except the lien
created by the Pooling and Servicing Agreement.
(14) As of the Closing Date with respect to each Asset, the
Seller is in possession of each of the Asset Documents required to be
included in the related Asset File (except to the extent such Asset
File has been delivered to the Trustee as described in this Agreement).
(15) The transfer, assignment and conveyance of the Assets by
the Seller pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any
applicable jurisdiction.
(16) The Seller used no adverse selection procedures in
selecting the Assets from among the outstanding contracts and mortgage
loans in its portfolio as to which the representations and warranties
required by this Agreement could truthfully be made.
[(17) The Assets set forth on Schedule IV hereto are the
"Step-up Rate Loans," as defined in the Prospectus Supplement.]
(18) As of the Closing Date, the description of the Assets
acquired from the Seller set forth in the Prospectus Supplement under
the heading "The Asset Pool" does not contain any untrue statement of
any material fact or omit any material fact required to be stated
therein or necessary in order to make the statements contained therein,
in light of the circumstances under which they are made, not
misleading.
(19) The information set forth in Schedule IA and Schedule IB
hereto is true and correct in all material respects as of the
applicable Cut-off Date.
(20) The consideration received by the Seller upon the sale of
the Assets under this Agreement constitutes fair consideration and
reasonably equivalent value for the Assets.
(21) The Seller is solvent, and the sale of the Assets will
not cause the Seller to become insolvent. The sale of the Assets is not
undertaken with the intent to hinder, delay or defraud any of the
Seller's creditors.
8
(22) The Seller intends to relinquish all rights to possess,
control and monitor the Assets sold pursuant to this Agreement (except
such rights as are entailed in its serving as the Servicer of the
Assets under the Pooling and Servicing Agreement). After the Closing
Date the Seller will have no right to modify or alter the terms of the
sale of the Assets, and the Seller will have no right or obligation to
repurchase any Asset or substitute another contract or mortgage loan,
as applicable, for any Asset sold hereunder, except as provided in
Sections 3 and 7 hereof.
(23) As of the date hereof no property securing an Asset is
subject to repossession, foreclosure, litigation, bankruptcy or
insolvency proceedings or any workout or foreclosure agreement, and, to
the best of the Seller's knowledge, the filing of a bankruptcy or
insolvency proceeding that would result in any Asset becoming subject
to bankruptcy or insolvency proceedings is not imminent.
[(24) The Assets listed on Schedule III hereto are insured
against losses by the Federal Housing Administration (subject to
applicable limitations on such insurance).]
(b) As of the date of this Agreement and as of the Closing Date, the
Seller hereby represents and warrants to OMI that each applicable representation
and warranty set forth in Schedule II hereto is true and correct.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF OMI. OMI hereby represents
and warrants to the Seller as of the date of this Agreement or as of such other
date as is specifically provided, as follows:
(a) OMI is a corporation duly organized and validly existing in good
standing under the laws of the State of Nevada.
(b) OMI has the full power, authority (corporate and other) and legal
right to execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Agreement.
(c) This Agreement has been duly and validly authorized, executed and
delivered by OMI, and (assuming the due authorization, execution and delivery
hereof by the Seller) constitutes the valid, legal and binding agreement of OMI,
enforceable against OMI in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is sought in a proceeding in equity or at
law.
(d) No consent, approval, authorization or order of or registration or
filing with, or notice to, any governmental authority or court is required,
under federal laws or the laws of the
9
State of Nevada, for the execution, delivery and performance of or compliance by
OMI with this Agreement or the consummation by OMI of any other transaction
contemplated hereby.
(e) Neither the execution and delivery of this Agreement by OMI, nor
the consummation by OMI of the transactions hereby contemplated, nor compliance
with the provisions hereof by OMI, will (i) conflict with or result in a breach
of, or constitute a default under, any of the provisions of OMI's articles of
incorporation or by-laws, or any law, governmental rule or regulation, or any
judgment, decree or order binding on OMI or any of its properties, or any of the
provisions of any contract or other instrument to which OMI is a party or by
which it is bound or (ii) result in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Certificates.
(f) There is no litigation pending or, to OMI's knowledge, threatened
against OMI that would reasonably be expected to affect adversely the execution,
delivery, performance or enforceability of this Agreement or have a material
adverse effect on the financial condition of OMI.
SECTION 6. COVENANTS OF THE SELLER. The Seller hereby covenants to
OMI as follows:
(a) Simultaneously with the execution hereof, the Seller shall execute
and deliver a Secretary's or Assistant Secretary's Certificate evidencing the
Seller's authority to enter into the transactions contemplated by this
Agreement.
(b) On or before the Closing Date the Seller shall take all steps
required of it to effect the transfer of the Assets to the Trustee, as
transferee of OMI, free and clear of any lien, charge, or encumbrance.
(c) The Seller shall use its best efforts to make available to counsel
for OMI in executed form each of the Closing Documents (as defined in Section
9(b) below) no later than two Business Days before the Closing Date, it being
understood that such documents are to be released and delivered only on the
closing of the transaction contemplated hereby and the sale of the Certificates.
(d) In the event the Seller fails to take all actions necessary to
effect the conveyance of the Assets to OMI on or before the Closing Date as
contemplated hereby, the Seller hereby constitutes and appoints OMI and its
officers and representatives as the Seller's true and lawful attorneys-in-fact
to do all acts and transactions and to execute and deliver all agreements,
documents, instruments and papers by and on behalf of the Seller as may be
necessary to consummate the transfer of the Assets to OMI. The foregoing grant
of authority shall be deemed to be irrevocable and a power coupled with an
interest.
10
(e) The Seller shall record its transfer of the Assets to OMI as a sale
of its interest therein under generally accepted accounting principles. The
Seller shall also report the transfer as a sale in all financial statements and
reports to regulatory and supervisory agencies and authorities to which it
reports, if any. For federal income tax purposes, the Seller will treat the
transfer of the Assets as a sale.
(f) If in the future OAC is not the Servicer, the Seller will promptly
notify the Servicer upon the Seller's receiving notice or otherwise gaining
actual knowledge of any re-registration of a Manufactured Home underlying a
Contract in a name other than that of the Seller, OMI or the Trustee.
SECTION 7. REPURCHASE OBLIGATIONS.
(a) Each of the representations and warranties made by the Seller
herein shall survive the purchase by OMI of the Assets and shall continue in
full force and effect, notwithstanding any restrictive or qualified endorsement
on the Mortgage Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The Seller's representations
and warranties shall not be impaired by any review or examination of Asset
Documents or other documents evidencing or relating to the Assets or any failure
on the part of OMI to review or examine such documents and shall inure to the
benefit of the Trustee (as the assignee of OMI) for the benefit of the
Certificateholders. With respect to the representations and warranties contained
herein that are made to the best of the Seller's knowledge or as to which the
Seller has no knowledge, if it is discovered by either the Seller, OMI or the
Trustee that the substance of any such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Asset, then notwithstanding the Seller's lack of knowledge with respect to the
substance of such representation and warranty being inaccurate at the time the
representation and warranty was made, the Seller shall take action in accordance
with the following paragraph in respect of such Asset.
(b) Upon discovery or receipt of notice by the Seller, OMI or the
Trustee of any missing or materially defective document in any Asset File, a
breach of any of the representations and warranties set forth in Section 4
hereof or in Schedule II hereto, or a default in the performance of any of the
covenants or other obligations of the Seller under this Agreement, that in any
of the foregoing cases materially and adversely affects the value of any Asset
or the interest therein of OMI or the Trustee, the party discovering or
receiving notice of the missing or materially defective document, breach, or
default shall give prompt written notice to the other parties. Upon its
discovery or its receipt of notice of any such missing or materially defective
documentation or any such breach of a representation and warranty or covenant,
the Seller shall, within 90 days after such discovery or receipt of such notice,
either (i) cure such defect or breach in all material respects, or (ii) either
repurchase the affected Asset at the Repurchase Price therefor or cause the
removal of such Asset from the Trust (in which case it shall become a Replaced
Asset) and substitute therefor
11
one or more Assets, each of which must be a Qualified Substitute Asset as
defined in the Pooling and Servicing Agreement; PROVIDED, however, that any such
substitution must occur within two years of the Closing Date. Notwithstanding
the foregoing, if such missing or materially defective document, breach, or
default exposes or results in a Qualification Defect, the cure, repurchase, or
substitution of the affected Asset must take place within 75 days of the Defect
Discovery Date, PROVIDED, HOWEVER, that any substitution must take place within
two years of the Closing Date. The Servicer shall amend the Asset Schedule to
reflect the withdrawal of any Asset from the terms of this Agreement and the
Pooling and Servicing Agreement and the addition, if any, of any Qualified
Substitute Asset(s). In order to effect a substitution pursuant to this Section
7(b), the Seller will deliver to the Trustee (i) each of the Asset Documents
required to be contained in the Asset File with respect to the Qualified
Substitute Asset(s) and (ii) if the aggregate Unpaid Principal Balance on the
date of substitution of the Qualified Substitute Asset(s) is less than the
aggregate Unpaid Principal Balance of the Replaced Asset(s) (after application
of Monthly Payments due in the month of substitution), cash in an amount equal
to such shortfall. The Trustee shall deposit any such cash into the Certificate
Account. Any repurchase of an Asset pursuant to this Section 7(b) shall be
accomplished by the delivery to the Trustee, on (or determined as of) the last
day of the calendar month in which such repurchase is made, of the Repurchase
Price for such Asset.
(c) It is understood and agreed that the obligations of the Seller set
forth in this Section 7 to cure, repurchase or substitute for an Asset and to
indemnify OMI as provided in Section 8 of this Agreement constitute the sole
remedies of OMI and the Trustee against the Seller with respect to a missing or
materially defective document in any Asset File, a breach of representations and
warranties of the Seller set forth in Section 4 hereof or in Schedule II hereto,
or a default in the performance by the Seller of any of its covenants or other
obligations under this Agreement.
SECTION 8. INDEMNIFICATION.
----------------
(a) In the event the Seller breaches its representations, warranties,
covenants or obligations set forth herein, the Seller shall indemnify and hold
harmless OMI (and its assignees in accordance with Section 17 hereof) (the
"Indemnified Parties") from and against any loss, damages, penalties, fines,
forfeiture, legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, such breach. Promptly after receipt by an
Indemnified Party of notice of the commencement of any such action, such
Indemnified Party will notify the Seller in writing of the commencement thereof
if a claim in respect of such action is to be made against the Seller under this
Section 8, but the omission so to notify the Seller will not relieve the Seller
from any liability hereunder unless such omission materially prejudices the
rights and positions of the Seller. If any such action is brought against an
Indemnified Party, and it notifies the Seller of the commencement thereof, the
Seller will be entitled to participate therein, and to assume the defense
thereof, with counsel selected by the Seller and satisfactory to such
Indemnified Party, and after notice from the Seller to the Indemnified Party of
its election so to assume the defense thereof, the Seller will not be liable to
12
the Indemnified Party under this Section 8 for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
of such action; PROVIDED, HOWEVER, that if the defendants in any such action
include both one or more Indemnified Parties and the Seller and any such
Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to the Seller, the Indemnified Party or
Parties shall have the right to select separate counsel to defend such legal
action on behalf of such Indemnified Party or Parties (it being understood,
however, that the Seller shall not be liable for the expenses of more than one
separate counsel appointed by the Indemnified Parties) and, PROVIDED, FURTHER,
that this sentence shall not be in effect if (i) the Seller shall not have
employed counsel satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of commencement of the
action or (ii) the Seller shall have authorized the employment of counsel for
the Indemnified Party at the expense of the Seller. If the Seller assumes the
defense of any such proceeding, it shall be entitled to settle such proceeding
with the consent of any Indemnified Party that is also subject to such
proceeding or, if such settlement provides for release of any such Indemnified
Party in connection with all matters relating to the proceeding which have been
asserted against such Indemnified Party in such proceeding by the other parties
to such settlement, without the consent of such Indemnified Party.
(b) The Seller shall reimburse the Underwriter upon demand for all
amounts otherwise payable by OMI pursuant to Section 7 of OMI's Underwriting
Agreement Standard Provisions (May 1999), in the event that any breach referred
to in the preceding paragraph or any of the following results in the inability
of the parties hereto to consummate the transactions contemplated herein: (A)
failure to obtain any consent or authorization, if any, required under federal
or applicable state law for the Seller to perform the transactions contemplated
herein; or (B) the Seller's failure to perform any of the obligations of the
Seller under Section 9(a), (b), (c) or (d) hereof.
(c) In the event of either a breach by the Underwriter of its
obligation to purchase the Offered Certificates pursuant to the Underwriting
Agreement or a breach by the Purchaser of its obligation to purchase the Private
Certificates, subject to payment in full of the Issuance Fee to OMI, OMI hereby
assigns to the Seller any and all rights of action or other claims OMI may have
against the Underwriter or the Purchaser pursuant to the applicable agreement
(other than OMI's right to receive payment due OMI from the Underwriter or the
Purchaser for OMI's expenses related to the proposed issuance of the related
Certificates); PROVIDED, HOWEVER, that OMI expressly reserves, and does not
hereby assign, its rights to indemnification and contribution under the
Underwriting Agreement and any other rights to indemnification or contribution
it may have at law or in equity.
SECTION 9. CONDITIONS TO OBLIGATION OF OMI. The obligation of OMI
hereunder to purchase the Assets is subject to the following conditions:
13
(a) The accuracy in all material respects of all of the representations
and warranties of the Seller under this Agreement and the non-occurrence of any
event which, with notice or the passage of time, would constitute a default
under this Agreement;
(b) On the Closing Date, OMI shall have received, or OMI's attorneys
shall have received, in escrow (to be released from escrow at the time of
closing), the following documents (collectively, the "Closing Documents") in
such forms as are agreed upon and acceptable to OMI, duly executed by all
signatories other than OMI as required pursuant to the respective terms thereof:
(i) An Assignment of Assets substantially in the
form of Exhibit A hereto;
(ii) An Opinion of Counsel for the Seller as to
various corporate matters and such other Opinions of Counsel
as are necessary in order to obtain the ratings set forth in
Section 9(f) below, each of which shall be acceptable to OMI,
its counsel, the Seller, its counsel, and _____________ and
___________(the "Rating Agencies") (it being understood that
such opinions shall expressly provide that the Trustee shall
be entitled to rely on such Opinions of Counsel); and
(iii) From ___________________, certified public
accountants, two letters, (i) one dated the date of the
Underwriting Agreement and satisfactory in form and substance
to OMI and counsel for OMI to the effect that such accountants
have performed certain specified procedures as a result of
which they have determined that the Assets listed on Schedule
IA and Schedule IB hereto conform with the description thereof
in the Prospectus Supplement under "The Asset Pool" and that a
sampling of the Asset Files relating to the Assets conforms
with the information contained on the asset data file tape
upon which the information in the Prospectus Supplement under
the caption "The Asset Pool" was based; and (ii) the other
letter dated the Closing Date and satisfactory in form and
substance to OMI and counsel for OMI, reconfirming or updating
the letter described in clause (i) above and to the further
effect that such accountants have performed certain procedures
as a result of which they have determined that the Assets
listed on Schedule IA and Schedule IB to the Pooling and
Servicing Agreement conform with the description thereof in
the Prospectus Supplement under the caption "The Asset Pool,"
and covering such other matters relating to the Trust as OMI
may reasonably request;
(c) The Seller shall have delivered to the Trustee, in escrow, all
documents (including, without limitation, the Mortgage assigned by the Seller to
the Trustee and the Mortgage Note
14
endorsed to the Trustee with respect to each Mortgage Loan) required to be
delivered hereunder and shall have released its interest therein to OMI or its
designee;
(d) Compliance by the Seller with all other terms and conditions
of this Agreement;
(e) The purchase by the Underwriter of the Offered Certificates
pursuant to the terms of the Underwriting Agreement; and
(f) The receipt of written confirmation from _____ and _________ that
each has assigned ratings of ["Aaa" and "AAA", respectively, to the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates], of at least ["Aa3" and "AA+",
respectively, to the Class M-1 Certificates], of at least ["A2" and "A",
respectively, to the Class M-2 Certificates], of at least ["Baa2" and "BBB",
respectively, to the Class B-1 Certificates] and of at least ["Baa3" and "BBB-",
respectively, to the Class B-2 Certificates].
SECTION 10. FEES AND DEPOSITS.
(a) The Seller shall be responsible for payment of (i) all fees and
expenses of attorneys, accountants, printers and the Trustee in connection with
the issuance of the Certificates, (ii) the fees payable to the Securities and
Exchange Commission with respect to the Certificates and (iii) the fees payable
to the Rating Agencies for their initial ratings of the Certificates. In
addition, the Seller shall pay (i) the fees and expenses of its attorneys and
accountants, (ii) any required reserve fund deposits (as such terms are defined
in, and as required by, the Pooling and Servicing Agreement) and (iii) to
________________, the cost of the blue sky survey referred to in the Terms
Agreement.
(b) The Servicer shall be entitled to receive in consideration of its
services under the Pooling and Servicing Agreement a monthly fee on or with
respect to each Distribution Date in an amount not to exceed one-twelfth of
1.00% times the Pool Scheduled Principal Balance of the Assets in respect of
that Distribution Date.
SECTION 11. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST. The sale
and delivery on the Closing Date of the Assets described in the Asset Schedule
are mandatory, it being specifically understood and agreed that each Asset is
unique and identifiable on the date hereof and that an award of money damages
would be insufficient to compensate OMI for the losses and damages incurred by
OMI in the event of the Seller's failure to deliver the Assets on or before the
Closing Date. The Seller hereby grants to OMI a first lien on and a continuing
first priority security interest in each Asset and each document and instrument
evidencing each Asset to secure the performance by the Seller of its obligation
to deliver such Assets hereunder. All rights and remedies of OMI under this
Agreement are distinct from, and cumulative with, any other rights or remedies
under
15
this Agreement or afforded by law or equity, and all such rights and remedies
may be exercised concurrently, independently or successively.
SECTION 12. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered or mailed by registered mail, postage prepaid, or transmitted by
telecopier, telex or telegraph and confirmed by a similar mailed writing, to the
following:
a. If to OMI:
Oakwood Mortgage Investors, Inc.
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Treasurer
with a copy, given in the manner
prescribed above, to:
Xxxx X. Xxxxxxxxx, Esquire
Hunton & Xxxxxxxx
Riverfront Plaza - East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
b. If to the Seller:
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Oakwood Acceptance Corporation
Attention: Treasurer
with a copy, given in the manner
prescribed above, to:
Xxxx X. Xxxxxxxxx, Esquire
Hunton & Xxxxxxxx
Riverfront Plaza - East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
16
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this Section 12 for the giving of notice.
SECTION 13. SEVERABILITY OF PROVISIONS. Any part, provision,
representation, warranty or covenant contained in this Agreement that is
prohibited or unenforceable or that is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Asset shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA,
NOTWITHSTANDING ANY NORTH CAROLINA OR OTHER CONFLICT OF LAWS PROVISION TO THE
CONTRARY.
SECTION 15. AGREEMENT OF THE SELLER. The Seller agrees to execute and
deliver such instruments and take such actions as OMI or the Trustee may, from
time to time, reasonably request in order to effectuate the purpose and to carry
out the terms of this Agreement including, without limitation, the execution and
filing of any UCC financing statements to evidence the interests of OMI and any
of its transferees in the Assets and other assets assigned to the Trust.
SECTION 16. SURVIVAL. The Seller agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to have been relied upon by
OMI, notwithstanding any investigation heretofore or hereafter made by OMI or on
OMI's behalf, and that the representations, warranties and agreements made by
the Seller herein or in any such certificate or other instrument shall survive
the delivery of and payment for the Assets.
SECTION 17. ASSIGNMENT. The Seller hereby acknowledges that OMI will
assign all its rights hereunder (except those rights set forth in Section 8(b)
and Section 10 hereof) to the Trustee. The Seller agrees that, upon the
execution of the Pooling and Servicing Agreement, the Trustee will have all such
rights and remedies provided to OMI hereunder (except those rights set forth in
Section 8(b) and Section 10 hereof) and this Agreement will inure to the benefit
of the Trustee. The Trustee shall constitute not only an assignee of OMI's
rights in accordance with this Section 17 but also an intended third-party
beneficiary of this Agreement to the extent necessary to enforce such rights and
to obtain the benefit of such remedies.
SECTION 18. MISCELLANEOUS.
17
(a) This Agreement may be executed in two or more counterparts, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. This Agreement shall
inure to the benefit of, and be binding upon, the parties hereto and their
respective successors and assigns.
(b) Any person into which the Seller may be merged or consolidated or
any person resulting from a merger or consolidation involving the Seller or any
person succeeding to the business of the Seller shall be considered the
successor of the Seller hereunder, without the further act or consent of either
party hereto. Except as provided above, this Agreement cannot be assigned,
pledged or hypothecated by any party without the written consent of each other
party to this Agreement.
(c) This Agreement supersedes all prior agreements and understandings
between the parties hereto relating to the subject matter hereof. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning of the provisions of this Agreement.
(d) OMI shall immediately deliver the Assets and all related Asset
Documents to OAC or OAC's designee and any security interest created by Section
11 hereof shall be deemed to have been released if, on the Closing Date each of
the conditions set forth in Section 9 hereof shall not have been satisfied or
waived.
(e) It is the express intent of the parties hereto that the conveyance
of the Assets by the Seller to OMI as contemplated by this Agreement be
construed as a sale of the Assets by the Seller to OMI. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the Assets
by the Seller to OMI or any assignee of OMI, including, but not limited to, the
Trustee, to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties hereto, the Assets are
held to be property of the Seller, then (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the North Carolina
Uniform Commercial Code; (ii) the conveyance provided for herein shall be deemed
to be a grant by the Seller to OMI of a first priority security interest in all
of the Seller's right, title and interest in and to the Assets and all amounts
payable to the holder of the Assets in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities, or other property, including without limitation
all amounts, other than investment earnings, from time to time held or invested
in the Certificate Account or the Distribution Account, whether in the form of
cash, instruments, securities or other property; (iii) the possession by OMI or
its agents of items of property that constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of
18
perfecting the security interest pursuant to Section 9-305 of the North Carolina
Uniform Commercial Code, and (iv) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of OMI for the purpose of perfecting such security interest under applicable
law. Any assignment of the interest of OMI pursuant to any provision hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Seller and OMI shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Assets, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and would be maintained as such throughout the terms of this Agreement and
the Pooling and Servicing Agreement.
SECTION 19. REQUEST FOR OPINIONS. The Seller and OMI hereby request and
authorize _________________, as their counsel in this transaction, to issue on
behalf of the Seller and OMI such legal opinions to the Trustee, the Seller, OMI
and the Rating Agencies as may be (i) required by any and all documents,
certificates or agreements executed in connection with this Agreement or (ii)
requested by the Trustee, the Seller, OMI or the Rating Agencies or their
respective counsel.
19
IN WITNESS WHEREOF, the Seller and OMI have caused this Sales Agreement
to be executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
OAKWOOD MORTGAGE INVESTORS, INC.
By:________________________________
Name:_______________________________
Title:______________________________
OAKWOOD ACCEPTANCE CORPORATION
By:________________________________
Name:______________________________
Title:______________________________
ACKNOWLEDGED AND AGREED:
[________________________], as Trustee
By:________________________________
Name:______________________________
Title:______________________________
20
EXHIBIT A
ASSIGNMENT OF ASSETS
SCHEDULE IA
THE CONTRACTS
SCHEDULE IB
THE MORTGAGE LOANS
SCHEDULE II
REPRESENTATIONS AND WARRANTIES MADE BY THE SELLER
AS TO THE CONTRACTS AND MORTGAGE LOANS
SCHEDULE III
ASSETS INSURED BY FHA
SCHEDULE IV
ASSETS THAT ARE STEP-UP RATE LOANS
21
SCHEDULE II
REPRESENTATIONS AND WARRANTIES MADE BY THE SELLER
AS TO THE CONTRACTS AND MORTGAGE LOANS
I. THE FOLLOWING REPRESENTATIONS AND WARRANTIES ARE MADE BY
THE SELLER TO OMI WITH RESPECT TO THE CONTRACTS:
(a) The information pertaining to each Contract set forth in
the Contract Schedule was true and correct at the date or dates as of which such
information was furnished.
(b) Each Contract is the legal, valid and binding obligation
of the Obligor thereunder and is enforceable in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (whether
considered in a proceeding at law or in equity). There is no homestead exemption
that would prevent repossession of the related Manufactured Home from the
related Obligor. All parties to such Contract had full legal capacity to execute
such Contract and all other documents related thereto and to grant the security
interest purported to be granted thereby. The terms of such Contract have not
been waived, altered or modified in any respect, except by instruments or
documents identified in the Contract File relating thereto.
(c) There is in effect with respect to each Contract one or
more Standard Hazard Insurance Policies that provide, at a minimum, the same
coverage as that provided by a standard form fire and extended coverage
insurance policy that is customary for manufactured housing in the jurisdiction
in which the related Manufactured Home is located, or, if such a Standard Hazard
Insurance Policy is not in effect with respect to a particular Contract, such
Contract is covered by one or more blanket insurance policies, each issued by a
Qualified Insurer, covering losses on the Obligors' interests in the Contracts
relating to such Manufactured Homes resulting from the absence or insufficiency
of individual Standard Hazard Insurance Policies with respect to such Contract.
Such Standard Hazard Insurance Policies (or blanket policies in lieu thereof)
with respect to each Contract shall provide coverage in an amount at least equal
to the lesser of (i) the maximum insurable value of the related Manufactured
Home or (ii) the principal balance due from the Obligor under such Contract, in
either case subject to standard deductibles; PROVIDED, HOWEVER, that in any
event the amount of coverage provided by Standard Hazard Insurance Policies or
one or more blanket policies with respect to any Contract must be sufficient to
avoid the application of any co-insurance clause contained in such policies.
Each Standard Hazard Insurance Policy contains a standard loss payee clause in
favor of the originator (or other initial payee under the related Contract) and
its successors and assigns, including the Seller and its successors and assigns.
Such insurance shall provide flood insurance coverage for any Contract if the
related Manufactured Home is located in an area identified by the Secretary of
Housing and
II-1
Urban Development or the Director of the Federal Emergency Management Agency as
subject to special flood hazards (if flood insurance is available for
manufactured homes located in the area in which such Manufactured Home is
located).
(d) No Contract is subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, and neither
the operation of any of the terms of such Contract, nor the exercise of any
right thereunder, will render such Contract either unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or defense,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect to any Contract.
(e) Each Contract, and the sale of the Manufactured Home sold
thereunder, complied at the time of such sale in all material respects with
applicable state and federal laws (and regulations promulgated thereunder),
including usury, equal credit opportunity, fair credit reporting,
truth-in-lending or other similar laws, the Xxxxxxxx-Xxxx Warranty Act, the
Federal Trade Commission Act, and applicable state laws regulating retail
installment sales contracts and loans in general and manufactured housing retail
installment sales contracts in particular.
(f) There is no lien or claim for work, labor, material or
unpaid site rent affecting any Manufactured Home that is or may become a lien
prior to or equal with the security interest granted by the related Contract.
(g) Each Contract grants to the originator, the Seller or the
Trustee a valid and enforceable security interest in and lien on the related
Manufactured Home, and such security interest and lien has been duly perfected
and is prior to all other security interests in and liens on such Manufactured
Home that now exist or may arise hereafter or be created (except for any lien
for taxes unpaid by the related Obligor that may hereafter arise), or all
necessary and appropriate action shall have been performed by the Seller and the
related Obligor to perfect a first priority security interest in such
Manufactured Home in favor of the Seller or Trustee as secured party. Each
Contract contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Manufactured Home of the benefits of the security provided thereby.
(h) As of the date of origination of each Contract, either the
related Manufactured Home was not considered or classified as part of the real
estate on which it is situated under the laws of the jurisdiction in which it is
located, or the related Contract File contains a valid recorded Mortgage
together with valid recorded assignments thereof, or copies thereof, creating a
first mortgage lien on such real estate in favor of the Seller or the Trustee.
(i) Immediately prior to the sale thereof to OMI, the Seller
is the owner of each Contract, and acquired such ownership in good faith without
notice of any adverse claim.
II-2
(j) There is only one original of each Contract.
(k) As of the applicable Cut-off Date, no Contract was more
than 30 days delinquent in payment as to principal or interest or subject to
repossession or foreclosure proceedings and, to the best of the Seller's
knowledge, the initiation of any such proceedings is not imminent with respect
to any Contract. As of the applicable Cut-off Date, there was no default,
breach, violation or event permitting acceleration existing under any such
Contract and no event that, with notice and the expiration of any grace or cure
period, would constitute such a default, breach, violation or event permitting
acceleration under such Contract (except payment delinquencies permitted by the
first sentence hereof). The Seller has not waived any such default, breach,
violation or event permitting acceleration.
(l) Each Manufactured Home is free of material damage and, to
the best of the Seller's knowledge, is in good repair. The Seller is not aware
of any condemnation proceedings with respect to any Manufactured Home. Other
than those Assets noted in paragraph (x) below, each Manufactured Home is in the
possession of the related Obligor.
(m) No Contract has been satisfied, canceled or subordinated
in whole or in part or rescinded, and no Manufactured Home or Real Property
securing any such Contract has been released from the lien of such Contract or
the related Mortgage in whole or in part, nor has any instrument been executed
that would effect any such satisfaction, release, cancellation, subordination or
rescission.
(n) No Contract was originated under and no Contract is
subject to any laws that would make the transfer of such Contract from the
Seller to OMI or from OMI to the Trust or pursuant to transfers of Certificates
unlawful.
(o) Each Contract (other than the Step-up Rate Loans
identified on Schedule IV to the Sales Agreement) has a fixed rate of interest
and provides for level monthly payments that fully amortize the related loan
over a remaining term of not more than 360 months. The Step-up Rate Loans
identified on Schedule IV to the Sales Agreement conform to the description
thereof set forth in the Prospectus Supplement under the heading "The Asset
Pool."
(p) If one or more REMIC elections are to be made with respect
to all or part of the Trust, the REMIC Loan-to-Value Ratio of each Contract is
less than 125% either (i) at the time of its origination or as of the Startup
Day or (ii) if such Contract has been modified other than as a result of a
default or reasonably foreseeable default, as of the Startup Day.
(q) The Manufactured Home securing each Contract is a "single
family residence" as defined in section 25(e)(10) of the Code, I.E., it is used
as a single family residence, has a minimum living space of 400 square feet and
a minimum width of over 102 inches and is of
II-3
the kind customarily used at a fixed location. The Manufactured Home securing
each Contract is a "manufactured home" as defined in 42 U.S.C. section 5402(6).
(r) There are no delinquent taxes or other outstanding charges
affecting any related Manufactured Home or Real Property that are or may become
liens prior to, or equal or coordinate with, the lien thereon of the related
Contract.
(s) Each Contract was originated in the ordinary course of the
originator's business. Each Contract that was originated by the Seller (whether
originated in the Seller's name or in the name of another entity using funds
provided by the Seller) was underwritten and originated substantially in
accordance with the Seller's customary underwriting guidelines as in effect from
time to time.
(t) No Obligor under any Contract is the subject of any
proceeding under any chapter of the United States Bankruptcy Code or any
proceeding under any similar state law providing for the protection of debtors.
(u) The transfer, assignment and conveyance of the Contracts,
the Contract Documents and the Contract Files by the Seller pursuant to the
Sales Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction.
(v) Within 10 days after the Closing Date each Contract will
have been stamped with the following legend: "This Contract has been assigned to
___________________, as Trustee pursuant to a Pooling and Servicing Agreement
among Oakwood Mortgage Investors, Inc., Oakwood Acceptance Corporation and
______________, as Trustee." On or before the Closing Date the Seller shall
cause to be filed in all appropriate UCC filing offices the UCC-1 financing
statements relating to the Trust Estate that are described in Section 2.02(c)(1)
of the Standard Terms.
(w) Each Contract is a "qualified mortgage" within the meaning
specified for such term in section 860G of the Code and does not contain any
provision requiring action which would render it not such a "qualified
mortgage."
(x) With respect to each Land Secured Contract with an
original principal balance of $40,000 or greater, either (i) a title insurance
policy providing coverage in the amount of the full principal balance of such
Contract was issued at the time such Contract was originated, which policy is
valid and binding and is in full force and effect, and which policy insures that
the related Mortgage creates a valid first priority security interest on the
related Real Property, subject only to (A) the lien created by the related
Mortgage, (B) liens for taxes, assessments, levies, fees and other governmental
or similar charges which are not yet due or which are being contested in a
proceeding that will result in the suspension of such charge and will not affect
payments to the
II-4
holder of the related Contract and its successors and assigns (including the
Seller and its successors and assigns), and (C) any exceptions to title set
forth in such title insurance policy or the related preliminary title report
that will not adversely affect the ability of the Obligor to pay the principal
and interest due under the Contract or materially and adversely affect the
marketability of the title to the underlying real property in the event of
foreclosure thereon, or (ii) the related Obligor has good and marketable title
to the related Real Property.
(y) Each Contract was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance company, or
similar institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act or by
any such institution or by any financial institution approved for insurance by
the Secretary of Housing and Urban Development pursuant to Section 2 of the
National Housing Act.
[(z) Any Contract identified on Schedule III to the Sales
Agreement as being insured by the Federal Housing Administration ("FHA") has
been serviced in compliance with applicable FHA regulations and the FHA
insurance with respect to such Contract as in effect at the origination of such
Contract is in full force and effect. ]
II. THE FOLLOWING REPRESENTATIONS AND WARRANTIES ARE MADE BY
THE SELLER TO OMI WITH RESPECT TO THE MORTGAGE LOANS:
(a) The information pertaining to each Mortgage Loan set forth
in the Mortgage Loan Schedule was true and correct at the date or dates as of
which such information was furnished.
(b) The Seller has not assigned any interest or participation
in any Mortgage Loan other than to OMI (or if any such interest or participation
has been assigned it has been released or will be released prior to or
concurrently with the purchase of such Mortgage Loan by OMI). The Seller has not
acted to (i) modify any Mortgage Note or Mortgage relating to any Mortgage Loan
in any material respect, (ii) satisfy, cancel or subordinate any Mortgage Loan
in whole or in part, (iii) release the related Mortgaged Property in whole or in
part from the lien of any Mortgage Loan or (iv) execute any instrument effecting
the release, cancellation, modification or satisfaction of any Mortgage Loan.
(c) The Mortgage Note for each Mortgage Loan delivered to OMI,
the Trustee or OMI's other designee is the original Mortgage Note and is the
only Mortgage Note evidencing the Mortgage Loan that has been manually signed by
the related Obligor. As of the Cut-off Date, there is no default, breach,
violation or event of acceleration existing under any of the Mortgage Loan
Documents transferred to OMI or any event that with notice and expiration of any
grace or cure period would result in such a default, breach, violation or event
of acceleration.
II-5
(d)As of the Cut-off Date, no Monthly Payment on any Mortgage
Loan was more than 30 days delinquent.
(e) Each Mortgage Note and Mortgage executed and delivered by
an Obligor in connection with a Mortgage Loan has been duly executed and
delivered by the related Obligor and constitutes a legal, valid and binding
obligation of such Obligor, enforceable against such Obligor in accordance with
its terms, subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (whether
considered in a proceeding at law or in equity).
(f) Each Mortgage securing a Mortgage Loan has been duly
recorded in the appropriate governmental recording office in the jurisdiction
where the related Mortgaged Property is located or has been submitted to such
recording office for recordation.
(g) If the Mortgage securing a Mortgage Loan does not name the
Seller as the beneficiary or mortgagee, then a valid assignment, in recordable
form, assigning the Mortgage to the Seller or to OMI, has been duly recorded (or
has been sent for recordation) in the appropriate records depository for the
jurisdiction in which the related Mortgaged Property is located, and the Seller
has delivered to OMI the original of such assignment accompanied by appropriate
evidence that such assignment has been duly recorded (or a copy thereof
certified by the appropriate records depository to be a true and complete copy
of the recorded assignment) or a copy of the original assignment together with a
certificate from an officer of the Seller certifying that such assignment has
been sent for recordation in the appropriate records depository, but that such
recorded assignment has not been returned to the Seller.
(h) No Mortgage Loan has been modified in any material respect
since the date of its origination and no Mortgage Loan is presently subordinated
in whole or in part to any other lien, nor has the Mortgaged Property securing
any Mortgage Loan been released in whole or in part from the lien of the related
Mortgage.
(i) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof adequate
for the realization of the holder's rights against the related Mortgaged
Property in the event of a foreclosure or trustee's sale of such property. Upon
default by an Obligor on a Mortgage Loan and foreclosure on, or trustee's sale
of, the related Mortgaged Property pursuant to proper procedures, the holder of
the Mortgage Loan will be able to deliver good and merchantable title to the
Mortgaged Property underlying that Mortgage Loan, except to the extent that the
enforceability of remedies against such Obligor may be subject to applicable
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally, and to general principles of equity (whether considered in a
proceeding at law or in
II-6
equity). There is no homestead exemption or other exemption or defense available
to the related Obligor that would prevent the sale of the Mortgaged Property at
a trustee's sale or impair the right of the holder to foreclose thereon.
(j) In connection with the origination of each Mortgage Loan,
the originator complied with all applicable federal, state and local laws and
regulations, including but not limited to those related to consumer credit,
equal credit opportunity, real estate settlement procedures, truth-in-lending
and usury.
(k) An appraisal of the Mortgaged Property underlying each
Mortgage Loan was made at the time the Mortgage Loan was originated by an
appraiser who met the minimum qualifications of FNMA or FHLMC for appraisers of
conventional residential mortgage loans and was completed on a form satisfactory
to FNMA or FHLMC.
(l) The assignment of each Mortgage to the Trustee constitutes
a legal, valid and binding assignment of the Mortgage and creates, or upon
recordation will create, a valid first priority security interest in favor of
the Trustee in such Mortgage or vests ownership of such Mortgage in the Trustee.
(m) The Mortgage securing each Mortgage Loan creates a valid
and enforceable first lien on the related Mortgaged Property subject only to
Permitted Encumbrances. "Permitted Encumbrances" consist of the following in
respect of any Mortgage Loan:
1) the lien of current real property taxes and
assessments not yet due and payable;
2) covenants, conditions and restrictions, rights
of way, easements and other matters of public record as of the
date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the related
originator and referred to or otherwise considered in the
appraisal made for the originator; and
3) other matters to which like properties are
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property.
(n) There are no mechanic's or other liens against the related
Mortgaged Property which are superior to or equal to the first lien of the
related Mortgage Loan, except such liens that are expressly insured against by a
Title Insurance Policy.
II-7
(o) There are no delinquent taxes, governmental assessments or
municipal charges due and owing as to any Mortgaged Property. All such charges
have been paid or a sufficient escrow has been established to make payment of
such charges.
(p) Each Mortgaged Property is free of material damage and, to
the best of the Seller's knowledge, is in good repair. The Seller is not aware
of any condemnation proceedings with respect to any Mortgaged Property.
(q) All improvements located on each Mortgaged Property that
were considered in determining the appraised value of the Mortgaged Property lie
within the boundary lines of, and comply with building restrictions applicable
to, the Mortgaged Property. There is no violation of applicable zoning laws or
regulations with respect to any Mortgaged Property. No improvements on adjoining
properties encroach upon any Mortgaged Property in any respect so as to affect
adversely the value or marketability of the Mortgaged Property.
(r) The full principal amount of each Mortgage Loan has been
paid to the related Obligor or according to the direction of the Obligor. The
Obligor has no option under the related Mortgage to borrow additional funds
secured by the related Mortgage from the Seller or any other person. The
principal balance of each Mortgage Loan as of the Cut-off Date, as set forth in
the Mortgage Loan Schedule, is correct and is fully secured by the related
Mortgage.
(s) Except with respect to any funds held in a temporary
buy-down fund for a buy-down loan, no Mortgage Loan is subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the related
Mortgage Note or Mortgage, or the exercise of any right thereunder, render
either the Mortgage Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense, including
without limitation the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto.
(t) Pursuant to the terms of each Mortgage, all improvements
on the related Mortgaged Property are insured by an insurer acceptable to FNMA
against loss by fire and such other risks as are usually insured against by the
broad form of extended coverage hazard insurance policy as is from time to time
available. All such improvements are also insured against flood hazards if the
Mortgaged Property is in an area identified by the Secretary of Housing and
Urban Development or the Director of the Federal Emergency Management Agency as
subject to special flood hazards (and if flood insurance is available for real
properties located in the area in which such Mortgaged Property is located). All
such insurance policies (collectively, the "hazard insurance policy") meet the
requirements of the current guidelines of the Federal Insurance Administration,
conform to the FNMA Sellers' Guide and the FNMA Servicers' Guide, and
collectively constitute a standard policy of insurance for the locale where the
Mortgaged Property is located. The coverage provided by such a hazard insurance
policy is in the amount of the lesser of
II-8
(i) the full insurable value of the related Mortgaged Property on a replacement
cost basis or (ii) the unpaid balance of the Mortgage Loan, and in any event
must at least be sufficient to avoid application of any co-insurance clause
contained in such hazard insurance policy. The hazard insurance policy names
(and will name) the present owner of the Mortgaged Property as the insured and
contains a standard mortgagee loss payable clause in favor of the originator (or
another initial payee under the related Mortgage Note) and its successors and
assigns, including the Seller and its successors and assigns. The Mortgage
obligates the mortgagor thereunder to maintain the hazard insurance policy at
the mortgagor's cost and expense, and on the mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance at
such holder's cost and expense, and to seek reimbursement therefor from the
mortgagor. Where required by state law or regulation, the mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance.
(u) Each Standard Hazard Insurance Policy and Primary Mortgage
Insurance Policy (if any) is the valid and binding obligation of the related
insurer, is in full force and effect, and will be in full force and effect and
inure to the benefit of OMI and its successors and assigns (including the
Trustee) upon the consummation of the transactions contemplated by the Sales
Agreement. The Seller has not engaged in, and has no knowledge of the mortgagor
having engaged in, any act or omission which would impair the coverage of any
such policy, the benefits of any endorsement provided for therein, or the
validity and binding effect of either of the foregoing. Statements made by
either the Seller or the related Obligor in the applications for such insurance
were true and complete at the times of such applications and, to the best of the
Seller's knowledge, no events have occurred since the policies for such
insurance were issued that would reduce the stated coverage provided by such
policies.
(v) Each Mortgage Loan is secured by a fee simple estate (or,
if the Mortgaged Property is located in Hawaii or Maryland, a leasehold estate)
and the related Mortgaged Property consists of a parcel of real property with a
single family residence or a two- to four-family dwelling erected thereon.
(w) Each Mortgage Loan is covered by either (i) an attorney's
opinion of title and abstract of title the form and substance of which is
acceptable to FNMA or (ii) an American Land Title Association ("ALTA") lender's
title insurance policy or other generally acceptable form of policy of insurance
for the jurisdiction in which the related Mortgaged Property is located, issued
by a title insurer qualified to do business in the jurisdiction where the
related Mortgaged Property is located, insuring the initial mortgagee (or
beneficiary in the case of a deed of trust) and its successors and assigns
(including the Trustee) as to the first priority status of the lien created by
the related Mortgage, subject only to Permitted Encumbrances (as defined above
in paragraph II(m)), providing coverage in the amount of 100% of the outstanding
principal amount of the Mortgage Loan and providing coverage against any loss by
reason of the invalidity or unenforceability of the lien resulting from any
provisions of the Mortgage providing for adjustment to the Mortgage Rate
II-9
and Monthly Payment. Where required by state law or regulation, the Obligor has
been given the opportunity to choose the carrier of such lender's title
insurance. The related initial mortgagee (or beneficiary in the case of a deed
of trust), together with its successors or assigns (including the Trustee), is
the sole insured under such lender's title insurance policy, and such lender's
title insurance policy is in full force and effect and will be in full force and
effect upon the sale of the Mortgage Loan to OMI. No claims have been made under
such lender's title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage provided by such lender's title insurance policy.
(x) The Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance company, or
similar institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act.
(y) Neither the related originator nor the Seller has made any
representations to the related Obligor that are inconsistent with the mortgage
instruments used. If the Mortgage Loan has an adjustable interest rate, (i) the
Mortgage Rate is adjusted on each applicable interest rate adjustment date, in
accordance with the schedule set forth or described in the related Mortgage
Note, to equal the applicable index plus the applicable gross margin, rounded as
specified in the related Mortgage Note, subject to any periodic and/or lifetime
Mortgage Rate caps; (ii) all required notices of interest rate and payment
amount adjustments have been sent to the Obligor on a timely basis and such
adjustments were properly calculated; (iii) installments of interest are subject
to change due to the adjustments to the Mortgage Rate on each interest rate
adjustment date, with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by its stated maturity date, over an original
term of not more than thirty years from commencement of amortization; and (iv)
all Mortgage Rate adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. Any interest required to
be paid pursuant to state and local law has been properly paid and credited.
(z) For any Mortgage that constitutes a deed of trust, a
trustee, authorized and duly qualified under applicable law to serve as such,
has been properly designated and currently serves as such trustee and is named
in the Mortgage, and no fees or expenses are or will become payable by the
Seller or OMI or its assignees (including the Trustee) to the trustee under the
deed of trust, except in connection with a trustee's sale after default by the
Obligor.
(aa) The Seller has no knowledge of any circumstances or
conditions with respect to any Mortgage, the related Mortgaged Property, the
related Obligor or the Obligor's credit standing that can reasonably be expected
to cause private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan.
II-10
(bb) Each Mortgage Loan is a "qualified mortgage" within the
meaning specified for such term in section 860G of the Code and does not contain
any provision requiring action that would render it not such a "qualified
mortgage."
[(cc) Any Mortgage Loan identified on Schedule III to the
Sales Agreement as being insured by the Federal Housing Administration ("FHA")
or guaranteed in whole or in part by the U.S. Department of Veterans Affairs
("VA") has been serviced in compliance with applicable FHA or VA regulations and
the FHA insurance or VA guarantee with respect to such Mortgage Loan as in
effect at the origination of such Mortgage Loan is in full force and effect. ]
(dd) As of the date hereof, no property securing a Mortgage
Loan is subject to foreclosure, litigation, bankruptcy or insolvency proceedings
or any workout or foreclosure agreement, and, to the best of the Seller's
knowledge, the filing of a bankruptcy or insolvency proceeding that would result
in any Mortgage Loan becoming subject to bankruptcy or insolvency proceedings is
not imminent.
(ee) If one or more REMIC elections are to be made with
respect to all or part of the Trust, the REMIC Loan-to-Value Ratio of each
Mortgage Loan is less than 125% either (i) at the time of its origination or as
of the Startup Day or (ii) if such Mortgage Loan has been modified other than as
a result of a default or reasonably foreseeable default, as of the Startup Day.
II-11
EXHIBIT A TO THE SALES AGREEMENT
ASSIGNMENT OF ASSETS
ASSIGNMENT OF ASSETS, made as of the ____ day of ___, _____, by Oakwood
Acceptance Corporation, a North Carolina corporation ("OAC" or the "Seller"), to
Oakwood Mortgage Investors, Inc., a Nevada corporation ("OMI").
WHEREAS, the Seller and OMI are parties to that certain Sales
Agreement, dated as of ____ 1, ____, with respect to the sale by the Seller and
purchase by OMI of certain Assets (the "Sales Agreement");
WHEREAS, OMI intends to transfer the Assets and certain related assets
to _________________, as Trustee (the "Trustee") for OMI Trust ____-__ (the
"Trust") established pursuant to the Pooling and Servicing Agreement referred to
in the Sales Agreement (the "Pooling and Servicing Agreement");
NOW THEREFORE, the Seller, for and in consideration of the
consideration set forth in the Sales Agreement, and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, does hereby
bargain, sell, convey, assign and transfer to OMI, without recourse, free and
clear of any liens, claims or other encumbrances, all of its right, title and
interest in and to each of the Assets identified on Schedule IA and Schedule IB
to the Sales Agreement, together with the Asset Documents and other documents
maintained as part of the related Asset Files and the Seller's interest in any
Manufactured Homes, Mortgaged Properties or Real Properties which secure an
Asset but are acquired by repossession, foreclosure or deed in lieu of
foreclosure after the Closing Date, and all scheduled payments due on the Assets
after April 1, 1999 (the "Cut-off Date"), and all principal prepayments and
other unscheduled collections collected in respect of the Assets on or after the
Cut-off Date, and all proceeds of the conversion, voluntary or involuntary, of
the foregoing.
The Seller hereby acknowledges receipt from OMI of the Purchase Price
referred to in Section 2(a) of the Sales Agreement, which consists of cash in
the amount of $______________.
Nothing in this Assignment of Assets shall be construed to be a
modification of, or limitation on, any provision of the Sales Agreement,
including the representations, warranties and agreements set forth therein.
Unless otherwise defined herein, capitalized terms used in this
Assignment of Assets shall have the meanings assigned to them in the Sales
Agreement, or if not assigned in the Sales Agreement, the Pooling and Servicing
Agreement.
IN WITNESS WHEREOF, the Seller has caused this Assignment of Assets to
be executed and delivered by its respective officer thereunto duly authorized as
of the date above written.
OAKWOOD ACCEPTANCE CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
OMI hereby acknowledges receipt from the Seller of the Assets
identified on Schedule IA and Schedule IB to the Sales Agreement, subject to its
right of inspection set forth in Section 3 of the Sales Agreement.
OAKWOOD MORTGAGE INVESTORS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
