EXHIBIT 2.1
CONFIDENTIAL
ASSET PURCHASE AGREEMENT
dated as of November 24, 2003
by and among
OAKWOOD HOMES CORPORATION
AND THE OTHER PERSONS IDENTIFIED AS SELLERS HEREIN,
and
XXXXXXX HOMES, INC.
TABLE OF CONTENTS
PAGE
ARTICLE I
SALE OF ASSETS; CLOSING
1.01 Sellers' Assets.......................................................................... 2
1.02 Assumed Liabilities...................................................................... 7
1.03 Discharged Liabilities................................................................... 8
1.04 Purchase Price; Allocation; Adjustment................................................... 9
1.05 The Closing.............................................................................. 10
1.06 Post-Closing Access to Books and Records................................................. 11
1.07 Insurance Proceeds....................................................................... 11
1.08 Working Capital Adjustment............................................................... 12
1.09 Assumption of Contracts Between Execution and Closing.................................... 13
1.10 [Intentionally Omitted].................................................................. 14
1.11 Further Assurances; Post-Closing Cooperation............................................. 14
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
2.01 Corporate Existence...................................................................... 14
2.02 Authority................................................................................ 15
2.03 [Intentionally Omitted].................................................................. 15
2.04 No Conflicts............................................................................. 15
2.05 No Consents.............................................................................. 16
2.06 Legal Proceedings........................................................................ 16
2.07 Compliance With Laws and Orders.......................................................... 16
2.08 Benefit Plans; ERISA..................................................................... 17
2.09 Environmental Matters.................................................................... 17
2.10 Financial Statements..................................................................... 18
2.11 Taxes.................................................................................... 18
2.12 Title to Transferred Assets.............................................................. 18
2.13 Entire Business.......................................................................... 18
2.14 Insurance................................................................................ 19
2.15 Labor Relations.......................................................................... 19
2.16 No Undisclosed Liabilities............................................................... 19
2.17 Absence of Changes; Other Business Matters............................................... 19
2.18 Brokers' Fees............................................................................ 20
2.19 Disclaimer of other Representations and Warranties....................................... 20
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.01 Corporate Existence...................................................................... 20
3.02 Authority................................................................................ 20
3.03 No Conflicts............................................................................. 21
3.04 No Consents.............................................................................. 21
3.05 Legal Proceedings........................................................................ 21
3.06 Financing................................................................................ 22
3.07 Brokers' Fees............................................................................ 22
ARTICLE IV
COVENANTS OF SELLERS
4.01 Regulatory and Other Approvals........................................................... 22
4.02 HSR Filing............................................................................... 23
4.03 Bidding Procedures....................................................................... 23
4.04 Conduct of Business...................................................................... 24
4.05 Certain Restrictions..................................................................... 24
4.06 Affiliate Transactions................................................................... 25
4.07 Bankruptcy Court Approvals............................................................... 26
4.08 Tax Matters.............................................................................. 27
4.09 Access to Information.................................................................... 27
4.10 Post-Closing Payments.................................................................... 27
4.11 Employees................................................................................ 27
4.12 Environmental Reports.................................................................... 28
4.13 Pooling and Servicing Agreements......................................................... 29
ARTICLE V
COVENANTS OF PURCHASER
5.01 Regulatory and Other Approvals........................................................... 31
5.02 Bankruptcy Court Approvals............................................................... 32
5.03 Letters of Credit/Surety Bonds........................................................... 32
5.04 Greenwich Capital Servicing Agreement.................................................... 33
5.05 Agreements Relating to the Auction....................................................... 33
5.06 Confidentiality.......................................................................... 33
5.07 Post-Closing Payments.................................................................... 33
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ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
6.01 Representations and Warranties........................................................... 33
6.02 Performance.............................................................................. 34
6.03 Officer's Certificates................................................................... 34
6.04 Orders and Laws.......................................................................... 34
6.05 Regulatory Consents and Approvals........................................................ 34
6.06 Plan and Confirmation Order.............................................................. 34
6.07 Deliveries............................................................................... 35
6.08 Material Adverse Effect.................................................................. 35
6.09 Pooling and Servicing Agreements......................................................... 35
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF SELLERS
7.01 Representations and Warranties........................................................... 35
7.02 Performance.............................................................................. 35
7.03 Officer's Certificates................................................................... 35
7.04 Orders and Laws.......................................................................... 35
7.05 Regulatory Consents and Approvals........................................................ 36
7.06 Confirmation Order....................................................................... 36
7.07 Letters of Credit/Surety Bonds........................................................... 36
7.08 Deliveries............................................................................... 36
ARTICLE VIII
TERMINATION
8.01 Termination.............................................................................. 36
8.02 Effect of Termination.................................................................... 38
ARTICLE IX
DEFINITIONS
9.01 Definitions.............................................................................. 39
ARTICLE X
MISCELLANEOUS
10.01 Non-Survival of Representations and Warranties........................................... 50
10.02 Notices.................................................................................. 50
10.03 Bulk Sales Act........................................................................... 52
10.04 Entire Agreement......................................................................... 52
10.05 Expenses................................................................................. 52
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10.06 Public Announcements..................................................................... 52
10.07 Confidentiality.......................................................................... 53
10.08 Waiver................................................................................... 53
10.09 Amendment................................................................................ 53
10.10 No Third Party Beneficiary............................................................... 53
10.11 No Assignment; Binding Effect............................................................ 53
10.12 Headings................................................................................. 54
10.13 Retention of U.S. Bankruptcy Court Jurisdiction.......................................... 54
10.14 Governing Law............................................................................ 54
10.15 Invalid Provisions....................................................................... 54
10.16 Counterparts............................................................................. 55
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Schedules
Sellers' Disclosure Schedules
Identification of Sellers
Section 1.01(a)(iii) - Post-Petition Real Property Leases
Section 1.01(a)(vi) - Post-Petition Personal Property Leases
Section 1.01(a)(vii) - Post-Petition Business Contracts
Section 1.01(a)(xv) - REMIC Receivables
Section 1.01(b)(iii) - Excluded Real Property
Section 1.01(b)(iv) - Excluded Accounts Receivable
Section 1.01(b)(v) - Excluded Tangible Personal Property
Section 1.01(b)(vi) - Excluded Intangible Personal Property
Section 1.01(b)(vii) - Excluded Vehicles
Section 1.01(b)(viii) - Excluded Books and Records
Section 1.01(b)(x) - Excluded Security Deposits
Section 1.01(b)(xi) - Excluded Litigation Claims
Section 1.01(b)(xii) - Excluded Investments
Section 1.01(b)(xiv) - Other Excluded Assets and Properties
Section 1.02 - Assumed Liabilities
Section 1.09(a) - Pre-Petition Contracts Assumed by Sellers
Before Agreement Executed
Section 1.09(b) - Contracts to be Assumed
Section 2.01 - Non-Seller OHC Subsidiaries
Section 2.05 - Notices, Consents and Approvals
Section 2.06 - Legal Proceedings
Section 2.11(a) - Tax Returns
Section 2.12 - Title Matters
Section 2.13 - Shared Facilities or Services
Section 2.17(c) - Location Managers Terminated Within Past
3 Months
Section 4.13 Pooling and Servicing Agreements
Section 5.03 - Outstanding Letters of Credit
Exhibits
Exhibit A Xxxx of Sale
Exhibit B Assumption Agreement
Exhibit C Certificate of Officer of Seller
Exhibit D Certificate of Secretary/Assistant Secretary of Seller
Exhibit E Certificate of Officer of Purchaser
Exhibit F Certificate of Secretary/Assistant Secretary of Purchaser
Exhibit G Escrow Agreement
Exhibit H Bidding Procedures
Exhibit I [Intentionally Omitted]
Exhibit J Schedule of Working Capital Assets
Exhibit K Additional Loan Amount Criteria
Exhibit L Schedule of P&I Advances
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made as of November 24, 2003
(this "Agreement") by and among Oakwood Homes Corporation, a North Carolina
corporation ("OHC"), and the other Persons identified as "Sellers" on the
Identification of Sellers Section of Sellers' Disclosure Schedule (collectively
with OHC, "Sellers" and each individually, a "Seller"), and Xxxxxxx Homes, Inc.,
a Delaware corporation ("Purchaser").
RECITALS
1. Sellers and their Subsidiaries are engaged in the
business of designing, manufacturing, marketing and financing the sale of
manufactured and modular homes (the "Business");
2. Sellers (other than the Non-Debtor Sellers) are
debtors and debtors-in-possession under chapter 11 of title 11 of the United
States Code, 11 U.S.C. Sections 101-1330 (as amended, the "Bankruptcy Code"),
having commenced voluntary cases (No. 02-13396 (PJW) (Jointly Administered))
(the "Reorganization Cases") on November 15, 0000 (xxx "Xxxxxxxx Xxxx") xx xxx
Xxxxxx Xxxxxx Bankruptcy Court for the District of Delaware (the "U.S.
Bankruptcy Court");
3. Pursuant to Sections 1107(a) and 1108 of the
Bankruptcy Code, Sellers (other than the Non-Debtor Sellers) continue to operate
their respective businesses and manage their respective properties, and are
administering their respective estates created by Section 541 of the Bankruptcy
Code on the Petition Date (the "Estates");
4. The boards of directors, general partners or other
managing authorities of Sellers have each determined that, subject to (i) the
conduct of a full, fair and open Auction, (ii) notice to all creditors and
equityholders of Sellers (other than the Non-Debtor Sellers) and (iii)
confirmation of the Plan by the U.S. Bankruptcy Court (as detailed in Section
4.07 below), it is advisable and in the best interests of the Estates, the
beneficiaries of such Estates and the equity holders of the Non-Debtor Sellers
to consummate the transactions contemplated by this Agreement, upon the terms
and conditions set forth herein;
5. The board of directors of Purchaser has determined
that it is advisable and in the best interests of its stockholders to
consummate, and has approved, the transactions contemplated by this Agreement,
upon the terms and conditions set forth herein;
6. Sellers (other than the Non-Debtor Sellers) have
agreed, upon approval of the Bidding Procedures Motion by the U.S. Bankruptcy
Court, to file an amended plan of reorganization (the "Plan") with the U.S.
Bankruptcy Court to effect (i) the transactions contemplated by this Agreement
upon the terms and conditions set forth herein, or (ii) an Alternative
Transaction; and
7. Pursuant to Section 4.07 below Sellers (other than
the Non-Debtor Sellers) have agreed to: (i) transmit an amended disclosure
statement with respect to the Plan (the "Disclosure Statement"), once approved
by the U.S. Bankruptcy Court, to holders of claims and
equity interests in the Reorganization Cases, soliciting acceptance of the Plan,
and (ii) seek entry of an order of the U.S. Bankruptcy Court (the "Confirmation
Order") confirming the Plan pursuant to Section 1129 of the Bankruptcy Code (the
date on which the Confirmation Order is entered is hereinafter referred to as
the "Confirmation Date").
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants, agreements and conditions herein
contained, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
SALE OF ASSETS; CLOSING
1.01 Sellers' Assets.
(a) Assets Transferred. Upon the terms and
conditions set forth in this Agreement, each Seller will sell, transfer, convey,
assign and deliver to Purchaser (or one or more of its Affiliates, as designated
by Purchaser), free and clear of all Liens other than Permitted Liens, and
Purchaser (or one or more of its Affiliates, as designated by Purchaser) will
purchase and pay for, at the Closing, all of each Seller's right, title and
interest in, to and under all Assets and Properties used in or relating to the
Business (but excluding the Excluded Assets), as such Assets and Properties
shall exist on the Closing Date (collectively, the "Transferred Assets"),
including the following:
(i) [INTENTIONALLY OMITTED]
(ii) Real Property. All owned real
property, and all of the rights arising out of the ownership thereof or
appurtenant thereto, used in or relating to the Business, together with all
buildings, structures, facilities, fixtures and other improvements thereto,
other than the real property listed in Section 1.01(b)(iii) of Sellers'
Disclosure Schedule (the "Real Property");
(iii) Real Property Leases. All leases
and subleases of real property, including capital leases, used in or relating to
the Business (1) entered into after the Petition Date and on or before the date
of this Agreement (all of which are specifically listed on Section 1.01(a)(iii)
of Sellers' Disclosure Schedule, except for those (x) which would not,
individually, require payment in the event of termination, cancellation or
breach of $50,000 or more, or (y) have been entered into by Sellers in the
Ordinary Course of Business (without regard to the proviso in the definition of
such term)), (2) entered into after the date of this Agreement consistent with
the terms hereof, (3) listed on Section 1.09(a) of Sellers' Disclosure Schedule
(other than as "Excluded Contracts") or (4) assumed by Sellers pursuant to
Section 1.09(b), in each case together with any options to purchase the
underlying property and leasehold improvements thereon and any other rights,
subleases, licenses, permits, deposits and profits appurtenant to or related to
such leases and subleases (the "Real Property Leases");
(iv) Inventory. All inventories,
including raw materials, work-in-process, finished goods, products under
research and development, demonstration equipment, office and other supplies,
parts, packaging materials and other accessories related thereto, used in or
relating to the Business whether held at, or in transit from or to, the
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locations at which the Business is conducted, or located at any customer's
premises (on consignment or otherwise), including any of the foregoing purchased
subject to any conditional sales or title retention agreement in favor of any
other Person, together with all rights against suppliers of such inventories
(the "Inventory");
(v) Tangible Personal Property. All
owned furniture, fixtures, equipment, machinery and other tangible personal
property (other than Inventory and Vehicles) used in or relating to the
Business, whether at, or in transit to or from, the locations at which the
Business is conducted or located at any customer's premises (on consignment or
otherwise), including any of the foregoing purchased subject to any conditional
sales or title retention agreement in favor of any other Person, other than the
tangible personal property listed in Section 1.01(b)(v) of Sellers' Disclosure
Schedule (the "Tangible Personal Property");
(vi) Personal Property Leases. All
leases and subleases of furniture, fixtures, equipment, machinery and other
tangible personal property (other than Inventory) used in or relating to the
Business (other than Computer/Telecommunications Contracts) (1) entered into
after the Petition Date and on or before the date of this Agreement (all of
which are specifically listed on Section 1.01(a)(vi) of Sellers' Disclosure
Schedule, except for those (x) which would not, individually, require payment in
the event of termination, cancellation or breach of $50,000 or more or (y) that
have been entered into by Sellers in the Ordinary Course of Business (without
regard to the proviso in the definition of such term)), (2) entered into after
the date of this Agreement consistent with the terms hereof, (3) listed on
Section 1.09(a) of Sellers' Disclosure Schedule (other than as an "Excluded
Contract") or (4) assumed by Sellers pursuant to Section 1.09(b), in each case
together with any options to purchase the underlying property (the "Personal
Property Leases");
(vii) Business Contracts. All Contracts
(other than the Real Property Leases, the Personal Property Leases and the
Business Licenses) relating to the Business (1) entered into after the Petition
Date and on or before the date of this Agreement (all of which are specifically
listed on Section 1.01(a)(vii) of Sellers' Disclosure Schedule, except for those
(x) that primarily relate to computer hardware or software, telecommunications
equipment or services, or any Contracts for the maintenance of the foregoing
(collectively, "Computer/Telecommunications Contracts") and do not, in the
aggregate (but excluding any Contracts specifically listed on Section
1.01(a)(vii) of Sellers' Disclosure Schedule), involve commitments on the part
of Sellers for an amount in excess of $200,000, or (y) that are not
Computer/Telecommunications Contracts and either (i) would not, individually,
require payment in the event of termination, cancellation or breach of $50,000
or more, or (ii) have been entered into by Sellers in the Ordinary Course of
Business (without regard to the proviso in the definition of such term)), (2)
entered into after the date of this Agreement consistent with the terms hereof,
(3) listed on Section 1.09(a) of Sellers' Disclosure Schedule (other than as an
"Excluded Contract") or (4) assumed by Sellers pursuant to Section 1.09(b), in
each case including Contracts relating to suppliers, sales representatives,
distributors, independent dealers, purchase orders, marketing arrangements and
manufacturing arrangements (the "Business Contracts");
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(viii) Prepaid Expenses. All prepayments
and prepaid expenses relating to the Real Property Leases, the Personal Property
Leases, the Business Contracts and Business Licenses (the "Prepaid Expenses");
(ix) Intangible Personal Property. All
Intellectual Property (including goodwill therein) used in or relating to the
Business and all rights, privileges and options relating to the Business, other
than the items listed in Section 1.01(b)(vi) of Sellers' Disclosure Schedule
(the "Intangible Personal Property");
(x) Licenses. To the extent their
transfer is permitted under applicable Laws, all Licenses (including
applications therefor) used in or relating to the Business, but only to the
extent that such Licenses have been entered into after the Petition Date and on
or before the date of this Agreement, have been entered into after the date of
this Agreement consistent with the terms hereof, are listed on Section 1.09(a)
of Sellers' Disclosure Schedule or are assumed by Sellers pursuant to Section
1.09(b) (the "Business Licenses");
(xi) Vehicles. All owned motor vehicles
used in or relating to the Business, other than the vehicles listed in Section
1.01(b)(vii) of Sellers' Disclosure Schedule (the "Vehicles");
(xii) Books and Records. All Books and
Records relating to the Business, other than the Books and Records described in
Section 1.01(b)(viii) (the "Business Books and Records"); provided, that to the
extent any of the Business Books and Records are items susceptible to
duplication and (x) are used in connection with any of the Excluded Assets or
Excluded Liabilities, (y) are required by Law to be retained by Sellers or (z)
may be required or necessary in connection with settlement of the Reorganization
Cases, Sellers may deliver photostatic copies or other electronic reproductions
from which, in the case of Business Books and Records referred to in clause (x),
information concerning the Excluded Assets and the Excluded Liabilities has been
deleted;
(xiii) [INTENTIONALLY OMITTED]
(xiv) Accounts Receivable. All trade
accounts receivable and all notes, bonds, mortgage loans and other evidences of
Indebtedness and rights to receive payments arising out of sales, including any
rights with respect to any third party collection procedures or any other
Actions or Proceedings which have been commenced in connection therewith, other
than those accounts receivable listed in Section 1.01(b)(iv) of Sellers'
Disclosure Schedule (the "Accounts Receivable");
(xv) REMIC Receivables. Those amounts
receivable from or reimbursable by REMIC Trusts arising out of Sellers'
servicing as listed in Section 1.01(a)(xv) of Sellers' Disclosure Schedule;
(xvi) Contract Escrow Amounts. All
amounts of cash held in escrow by Sellers pursuant to any retail customer
purchase contracts or, without duplication, any accrued liability of Sellers for
cash escrow amounts pursuant to any retail customer purchase contracts
("Contract Escrow Amounts"), provided, however, that with respect to any
Contract Escrow Amounts not held in trust by Sellers as of the Closing Date, the
transfer of
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such Contract Escrow Amounts to Purchaser shall be deemed to occur through the
reduction of the purchase price by the Contract Escrow Offset Amount pursuant to
Section 1.04(a);
(xvii) Security Deposits. All security
deposits (other than the Contract Escrow Amounts) made by or on behalf of, or
held by or on behalf of, a Seller, other than as described in Section 1.01(b)(x)
of Sellers' Disclosure Schedule (the "Transferred Security Deposits");
(xviii) Third Party Warranties. All third
party warranties issued in connection with any home for items, including
appliances and equipment in such home; and
(xix) Other Assets and Properties. All of
each Seller's right, title and interest in all other Assets and Properties used
in or relating to the Business other than the Excluded Assets (the "Other
Assets").
(b) Excluded Assets. Notwithstanding anything in
this Agreement to the contrary, the following Assets and Properties of Sellers
shall be excluded from the transfer to Purchaser under Section 1.01(a) and shall
not constitute Transferred Assets (collectively, the "Excluded Assets"):
(i) Cash. All cash (including checks
received prior to or after the close of business on the Closing Date, whether or
not deposited or cleared prior to the close of business on the Closing Date,
that relate to any period prior to the Effective Time), commercial paper,
letters of credit, rights of set-off or recoupment, certificates of deposit and
other bank deposits, treasury bills and other cash equivalents (other than
Contract Escrow Amounts and Transferred Security Deposits);
(ii) Tax Refunds. All refunds or
credits, if any, of Taxes due to any Seller with respect to any period prior to
Closing;
(iii) Real Property. The real property
and improvements described in Section 1.01(b)(iii) of Sellers' Disclosure
Schedule;
(iv) Accounts Receivable. The accounts
receivable and notes, bonds and other evidences of Indebtedness and rights to
receive payments, including any rights with respect to any third party
collection procedures or any other Actions or Proceedings which have been
commenced in connection therewith, described in Section 1.01(b)(iv) of Sellers'
Disclosure Schedule;
(v) Tangible Personal Property. The
furniture, fixtures, equipment, machinery and other tangible personal property
described in Section 1.01(b)(v) of Sellers' Disclosure Schedule;
(vi) Intangible Personal Property. The
Intellectual Property, rights, privileges and options described in Section
1.01(b)(vi) of Sellers' Disclosure Schedule;
(vii) Vehicles. The motor vehicles
described in Section 1.01(b)(vii) of Sellers' Disclosure Schedule;
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(viii) Excluded Books and Records. The
minute books, stock transfer books and corporate seals of Sellers and any other
Books and Records relating solely or primarily to the Excluded Assets or the
Excluded Liabilities and all tax records of Sellers; provided, that to the
extent that Books and Records included in the Excluded Assets relate to
Transferred Assets, Sellers shall deliver photostatic or other electronic
reproductions thereof, from which Sellers may delete information concerning the
Excluded Assets and the Excluded Liabilities;
(ix) Excluded Contracts. The rights of
Sellers in, to and under all Contracts of any nature where the obligations of
any Seller under such Contracts are not assigned to, and assumed by, Purchaser
pursuant to this Agreement;
(x) Excluded Security Deposits. All
security deposits made by or on behalf of, or held by or on behalf of, a Seller
described in Section 1.01(b)(x) of Sellers' Disclosure Schedule;
(xi) Litigation Claims. All of Sellers'
or their Subsidiaries' rights (including indemnification) and claims and
recoveries under litigation against third parties and all unexpired express or
implied representations, warranties, covenants, guaranties, and indemnifications
made to or in favor of a Seller or its Subsidiaries, and the rights to enforce
the same and to recover therefrom, and all other claims, causes of actions,
rights of recovery or set-off of every kind (including all causes of action
under Chapter 5 of the Bankruptcy Code and any other causes of action assertable
by or for the benefit of the Estates and creditors and including those claims
and other rights listed in Section 1.01(b)(xi) of Sellers' Disclosure Schedule),
other than Sellers' rights, claims and recoveries against third parties under
representations, warranties, covenants, guarantees and indemnifications made to
or in favor of a Seller solely to the extent the same relate exclusively or
primarily to the Transferred Assets or the Assumed Liabilities (but excluding
all Preference Claims);
(xii) Investments. All investments listed
in Section 1.01(b)(xii) of Sellers' Disclosure Schedule;
(xiii) Equity Interests in Sellers. All
equity interests held by each Seller in any other Seller or in any other
Subsidiary (other than any equity interests included in the Suburban Home Assets
to the extent such equity interests constitute Transferred Assets at Closing);
(xiv) Other Assets and Properties. All
other Assets and Properties listed in Section 1.01(b)(xiv) of Sellers'
Disclosure Schedule;
(xv) Agreement Related Rights. Sellers'
rights under this Agreement and the Operative Agreements;
(xvi) Insurance. Any and all insurance
policies of Sellers or their Subsidiaries, together with any and all proceeds of
such policies and the pay rights of Sellers and their Subsidiaries under such
policies; and
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(xvii) Excluded Loans. All chattel or
mortgage loans originated by Sellers after September 30, 2003 that do not
satisfy the criteria set forth on Exhibit K attached hereto.
(c) Suburban Homes Assets and Liabilities.
Purchaser shall be entitled (in its sole discretion) to designate all, but not
less than all, of the Suburban Homes Assets as Excluded Assets and the Suburban
Homes Liabilities as Excluded Liabilities by providing notice of such
designation to Sellers no later than two (2) Business Days prior to the Closing
Date and, following such notice, the Suburban Homes Assets and the Suburban
Homes Liabilities shall constitute Excluded Assets and Excluded Liabilities,
respectively, for all purposes of this Agreement; provided, that any such
designation shall have no effect on the purchase price under this Agreement;
provided, further, in the event of any such designation, the Suburban Homes
Assets shall be removed from the Schedule of Working Capital Assets and shall
not be included on the Schedule of Closing Date Working Capital Assets.
(d) Designated REMIC Class R Certificates.
Purchaser shall be entitled (in its sole discretion) to designate any or all of
the Designated REMIC Class R Certificates as Excluded Assets by providing notice
of such designation to Sellers no later than two (2) Business Days prior to the
Closing Date and, following such notice, the Designated REMIC Class R
Certificates shall constitute Excluded Assets for all purposes of this
Agreement; provided, that any such designation shall have no effect on the
purchase price under this Agreement; provided, further, in the event of any such
designation, the value of the Designated REMIC Class R Certificates that are
designated as Excluded Assets shall be removed from the Schedule of Working
Capital Assets and shall not be included on the Schedule of Closing Date Working
Capital Assets.
1.02 Assumed Liabilities.
(a) Purchaser or one or more of its Affiliates
shall assume only the following liabilities of Sellers (the "Assumed
Liabilities"): (i) all of those liabilities and categories of liabilities listed
in Section 1.02 of Sellers' Disclosure Schedule, (ii) the Assumed Rebate
Liabilities, (iii) the Assumed Warranty Service Liabilities, subject to Section
1.02(b) below, and (iv) all liabilities arising after the Closing Date under the
Real Property Leases, Personal Property Leases, the Business Contracts, the
Business Licenses and, to the extent provided in Section 4.13, liabilities
arising after the Closing Date under the Servicing Agreements (other than in
each case under clauses 1 through 4, any liability arising out of or relating to
a breach that occurred on or prior to the Closing Date and/or any other amount
or payment necessary to satisfy Bankruptcy Code Section 365(b) in connection
with such assumption). Notwithstanding the foregoing, Purchaser shall be and
remain liable to Sellers for the Assumed Liabilities under (1) Section
1.02(a)(ii), (2) Section 1.02(a)(iii), (3) Section 1.02(a)(iv) relating solely
to retail customer purchase contracts and (4) Business Contracts listed under
"Vendor Contracts" on Section 1.01(a)(vii) of Sellers' Disclosure Schedule
except to the extent such Assumed Liabilities are assigned in accordance with
Section 10.11.
(b) Purchaser's obligation to satisfy the
Assumed Warranty Service Liabilities is limited to warranty claims arising in
the Ordinary Course of Business (without regard to the proviso in the definition
of such term). Purchaser's obligation for Assumed
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Xxxxxxxx Service Liabilities shall extend only to the first retail purchaser of
the home to the extent that such limitation is permitted by applicable law.
Purchaser's obligation for the Assumed Warranty Service Liabilities exists only
for the time period covered by the Sellers' standard warranty. ALL OTHER
LIABILITIES AND OBLIGATIONS ASSOCIATED WITH THE MANUFACTURE, SALE, DELIVERY,
INSTALLATION OR FINANCING OF THE HOMES, INCLUDING WITHOUT LIMITATION ANY
PRODUCTS LIABILITY CLAIMS AND ANY WARRANTY OBLIGATIONS (OTHER THAN THE
OBLIGATION TO REPAIR OR REPLACE DEFECTIVE MATERIALS OR WORKMANSHIP), ANY
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, ANY CLAIMS RELATING TO
IMPLIED WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE APPLICABLE TO THE ITEMS OR COMPONENTS IN THE STANDARD WARRANTY, ARE
EXCLUDED AND DISCLAIMED AND NOT ASSUMED BY PURCHASER. Purchaser will be entitled
to the benefit of any third party warranties issued in connection with any home
for items, including appliances and equipment in such home. This provision is
intended solely for the benefit of Sellers and Purchaser and not for any third
party beneficiary.
(c) All Liabilities of Sellers that are not
expressly assumed by Purchaser in Section 1.02 (a) of this Agreement are
specifically excluded (all such excluded Liabilities, collectively, the
"Excluded Liabilities"), including, without limitation, any and all liability,
damages and expenses, whether now existing or hereafter arising, in any way
relating to (i) any employee benefit plans or policies of Sellers, Taxes
(subject to Section 1.04(c) and Section 4.08), personal injury claims, claims
for bodily injury or property damage, products liability claims, environmental
claims, breach of contract claims, employment claims, lender liability claims,
REMIC Class R certificates and any non-economic interests therein or, except to
the extent included in the Assumed Liabilities, pre-petition secured or
unsecured claims, (ii) any Employee Retained Liabilities, (iii) Excluded Assets,
or (iv) except for the Assumed Liabilities, the ownership or operation of the
Transferred Assets prior to the Closing Date.
1.03 Discharged Liabilities. Sellers (other than the
Non-Debtor Sellers) shall make provision in the Plan and shall make all
necessary transfers and assumptions and take all other necessary actions, and,
as applicable, shall cause their Subsidiaries to make such provisions, transfers
and assumptions and to take such actions, such that:
(a) At or upon Closing, all Excluded Liabilities
shall be forever discharged and released as to Purchaser, its Affiliates and the
Transferred Assets and shall be retained by Sellers or transferred to a trust,
the purpose of which will be, among other things, to accept the transfer of the
Excluded Liabilities and the Excluded Assets; and
(b) At or upon Closing, all Assumed Liabilities
shall be assumed by Purchaser or one or more of its Affiliates and shall be
forever discharged and released as to the Sellers, the Estates and the Excluded
Assets. Purchaser or one or more of its Affiliates (if any assume some or all of
the Assumed Liabilities), as applicable, shall pay, perform and satisfy all
Assumed Liabilities and shall indemnify and hold harmless Sellers and the
Estates from and against any and all costs or expenses incurred with respect to
the Assumed Liabilities, provided, that Purchaser and/or its Affiliates shall
have the ability to contest, in good faith, any such claim of liability asserted
in respect thereof by any Person.
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1.04 Purchase Price; Allocation; Adjustment.
(a) Purchase Price. Purchaser hereby agrees to
purchase the Transferred Assets from Sellers and to pay or cause to be paid to
Sellers the Total Purchase Price. The "Total Purchase Price" shall mean (i)
$372,500,000 (the "Initial Purchase Price"), (ii) minus the Working Capital
Adjustment Amount, (iii) plus or minus, as appropriate, any amounts payable
pursuant to Section 1.04(c), (iv) minus the Assumed Rebate Liabilities, (v)
minus the Warranty Service Liability Amount, (vi) plus the Additional Loan
Amount, (vii) minus the Asset Adjustment Amount, (viii) plus or minus, as
appropriate, the P&I Advances Adjustment Amount and (ix) minus the Contract
Escrow Offset Amount. The "Estimated Purchase Price" shall mean (i) the Initial
Purchase Price, (ii) plus or minus, as appropriate, any amounts determinable on
the Closing Date payable pursuant to Section 1.04(c), (iii) minus the Assumed
Rebate Liabilities, (iv) minus the Warranty Service Liability Amount, (v) minus
the Asset Adjustment Amount and (vi) plus the Additional Loan Amount.
(b) Allocation of Purchase Price. Within 180
days after the Closing Date, Purchaser shall provide to the Estates copies of
Internal Revenue Service Form 8594 and any required exhibits thereto with
Purchaser's proposed allocation of the purchase price among the Transferred
Assets (including a breakdown by legal entity). Within 60 days after the receipt
of such Form 8594, the Estates shall propose to Purchaser any changes to such
Form 8594 or shall indicate their concurrence therewith, which concurrence shall
not be unreasonably withheld. The failure by the Estates to propose any such
change within 60 days shall be deemed to be an indication of their concurrence
with such Form 8594. Any disputes with respect to the allocation of purchase
price which Purchaser and the Estates, acting in good faith, are unable to
resolve shall be submitted to Independent Accountants for a final determination.
Each party hereto agrees that no party will take a position on any income,
transfer or gains Tax Return, before any Governmental or Regulatory Authority
charged with the collection of any such Tax or in any judicial proceeding, that
is in any manner inconsistent with the terms of any such allocation without the
prior written consent of the other party.
(c) Proration of Real Property Charges. The
Estimated Purchase Price shall be increased or decreased, as the case may be, by
the net amount calculated as being for the account of Purchaser or Sellers, as
the case may be, in connection with the Real Property Leases and the Real
Property, after netting all of the following adjustments: the pro-rata share
accrued to the Effective Time of ordinary course bills for utility charges
(electricity, water, sewer and natural gas), telephone charges, real property
and personal property Taxes, common area maintenance charges, insurance premiums
due or accrued, payroll Taxes, garbage collection, rent and other customarily
proratable items. The adjustments referred to in this Section 1.04(c) shall
reflect, in accordance with GAAP, the principle that all expenses and income
attributable to the period at or after the Effective Time are for the account of
Purchaser and all expenses and income attributable to the period before the
Effective Time are for the account of Sellers. If the amount of any proratable
item cannot be determined as at Closing, the amount thereof shall be estimated
and, within twenty (20) days following the Closing, such amount shall be
finalized and any difference between the estimated amount and the actual amount
of the proratable items shall be paid by the Estates to Purchaser or by
Purchaser to the Estates on behalf of Sellers, as applicable, and the Total
Purchase Price shall be increased or decreased, as appropriate.
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1.05 The Closing.
(a) Closing. Unless this Agreement shall have
been terminated pursuant to Section 8.01, and subject to the satisfaction or
waiver (where applicable) of the conditions set forth in Articles VI and VII,
the closing of the transactions contemplated by this Agreement (the "Closing")
will take place at the offices of Purchaser, at 10:00 a.m., local time, on the
fifth Business Day following satisfaction of the conditions set forth in
Sections 6.05, 6.06, 6.09, 7.05, and 7.06 unless another date, time or place is
mutually agreed to in writing by the parties hereto (the "Closing Date"). The
Closing shall be effective as of 12:01 a.m. on the Closing Date (the "Effective
Time").
(b) Payment of Purchase Price. At the direction
of and on behalf of Sellers, at the Closing, (i) Purchaser will pay the
Estimated Purchase Price, less the Escrow Amount, by wire transfer of
immediately available United States funds to the Estates for distribution
pursuant to the Plan, the account information for such wire transfer to be
provided to Purchaser at least two (2) Business Days before the Closing Date,
and (ii) Purchaser will deliver, by wire transfer of immediately available
United States funds, the Escrow Amount to an escrow agent reasonably acceptable
to Purchaser and Sellers (the "Escrow Agent") under an escrow agreement to be
entered into on the Closing Date by and among Sellers, Purchaser and the Escrow
Agent substantially in the form of Exhibit G attached hereto (the "Escrow
Agreement").
(c) Closing Deliveries. Simultaneously with
Purchaser's delivery of the Estimated Purchase Price at the Closing in
accordance with Section 1.05(b):
(i) each Seller will convey to
Purchaser or one of more of its Affiliates all of its right, title and interest
in, to, and under the Transferred Assets, free and clear of all Liens other than
Permitted Liens, by delivery to Purchaser of (A) a Xxxx of Sale substantially in
the form of Exhibit A attached hereto (the "Xxxx of Sale"), duly executed by
each Seller, (B) special warranty deeds sufficient for recording and otherwise
conveying title to the Real Property, (C) powers of attorney to convey
additional whole loans, and (D) such other instruments of conveyance, assignment
and transfer sufficient to vest in Purchaser or one or more of its Affiliates
Sellers' title to the Transferred Assets transferred under Section 1.01 (the
Xxxx of Sale and the other instruments referred to in Section 1.05(c)(i)(B), (C)
and (D) being collectively referred to herein as the "Assignment Instruments");
and
(ii) Purchaser or one or more of its
Affiliates will assume from each Seller the due payment, performance and
discharge of the Assumed Liabilities by delivery of (A) one or more Assumption
Agreements substantially in the form of Exhibit B attached hereto (the
"Assumption Agreement") duly executed by Purchaser or one or more of its
Affiliates and (B) such other good and sufficient instruments of assumption, in
form and substance reasonably acceptable to Sellers, as shall be effective to
cause Purchaser or one or more of its Affiliates to assume the Assumed
Liabilities as and to the extent provided in Section 1.02 (the Assumption
Agreement and such other instruments referred to in clause (B) being
collectively referred to herein as the "Assumption Instruments"); provided, that
notwithstanding the foregoing, Purchaser shall be and remain liable to Sellers
for the Assumed Liabilities under (1) Section 1.02(a)(ii), (2) Section
1.02(a)(iii), (3) Section 1.02(a)(iv) relating solely to retail customer
purchase contracts and (4) Business Contracts listed under "Vendor
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Contracts" on Section 1.01(a)(vii) of Sellers' Disclosure Schedule except to the
extent such Assumed Liabilities are assigned in accordance with Section 10.11.
(d) At the Closing, there shall also be
delivered to Sellers and Purchaser the certificates and other documents required
to be delivered under Articles VI and VII.
1.06 Post-Closing Access to Books and Records.
(a) Following the Closing, each party (or, with
respect to each Seller, such Seller or its successor, as applicable, pursuant to
the Plan) will afford the other party and its Representatives, during normal
business hours, reasonable access to its Assets and Properties, Books and
Records and other data relating to the Business in its possession, custody or
control and the right to make copies and extracts therefrom, to the extent that
such access may be reasonably required by the requesting party in connection
with (i) the preparation of Tax Returns, (ii) compliance with the requirements
of any Governmental or Regulatory Authority, (iii) the determination or
enforcement of the rights and obligations of any party to this Agreement or any
of the Operative Agreements, (iv) the completion of the Reorganization Cases,
(v) any reports, filings, responses, claims, adversary proceedings or other
matters before the U.S. Bankruptcy Court or (vi) any actual or threatened Action
or Proceeding. Upon request and as reasonably required in connection with the
completion of the Reorganization Cases, Purchaser will provide to each Seller or
its successor, as applicable, pursuant to the Plan (at the requesting party's
expense) (x) copies of the above-referenced information and (y) reasonable
access to the Employees hired by Purchaser or its Affiliates to discuss matters
relating to the Business with respect to periods prior to the Closing.
(b) If, in order properly to prepare its Tax
Returns, other documents or reports required to be filed with Governmental or
Regulatory Authorities or its financial statements or to fulfill its obligations
thereunder, it is necessary that a party be furnished with additional
information, documents or records relating to the Business not referred to in
Section 1.06(a) above, and such information, documents or records are in the
possession, custody or control of the other party, such other party shall use
commercially reasonable efforts to furnish or make available such information,
documents or records (or copies thereof) at the recipient's request, in each
case at the requesting party's cost and expense. Any information obtained by
such party in accordance with this Section 1.06(b) shall be held confidential by
such party in accordance with Section 10.07.
(c) Notwithstanding anything to the contrary
contained in this Section 1.06, if the parties are in an adversarial
relationship in litigation or arbitration concerning a specific matter, the
furnishing of information, documents or records concerning such litigation or
arbitration in accordance with Sections 1.06(a) and (b) shall be subject to
applicable rules relating to discovery.
1.07 Insurance Proceeds. If any of the Transferred Assets
that otherwise would have been transferred to Purchaser pursuant to this
Agreement are destroyed or damaged or taken in condemnation after the date
hereof and prior to the Closing, Sellers shall promptly give notice of the same
to Purchaser, and upon written instruction from Purchaser shall cause all
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necessary repairs or restoration to such properties to be made promptly to the
extent of any insurance proceeds that have been received by Sellers with respect
to such Transferred Assets. If any such insurance proceeds or condemnation award
are received by any Seller after the Closing, such Seller shall forthwith pay to
Purchaser the insurance proceeds or condemnation award so received less, in the
case of insurance proceeds, the amount actually expended by Sellers to perform
any repair or restoration in connection with any such destruction, damage or
taking prior to the Closing Date.
1.08 Working Capital Adjustment.
(a) Within thirty (30) Business Days following
the Closing Date, Purchaser shall cause to be prepared and shall deliver to
Sellers (i) the Schedule of Closing Date Working Capital Assets, (ii) the
Schedule of Closing Date P&I Advances, (iii) the Contract Escrow Offset Amount
and (iv) the Total Purchase Price Calculation. Sellers shall have twenty (20)
Business Days following delivery of the Schedule of Closing Date Working Capital
Assets, the Schedule of Closing Date P&I Advances, the Contract Escrow Offset
Amount and the Total Purchase Price Calculation in which to review the Schedule
of Closing Date Working Capital Assets, the Schedule of Closing Date P&I
Advances, the Contract Escrow Offset Amount and the Total Purchase Price
Calculation, and if Sellers disagree with the Schedule of Closing Date Working
Capital Assets, the Schedule of Closing Date P&I Advances, the Contract Escrow
Offset Amount or the Total Purchase Price Calculation, then Sellers shall,
within such 20-Business Day period, deliver to Purchaser a written proposed
adjustment to the Schedule of Closing Date Working Capital Assets, the Schedule
of Closing Date P&I Advances, the Contract Escrow Offset Amount and/or the Total
Purchase Price Calculation ("Sellers' Adjustment Request") setting forth (A) the
amount of the proposed adjustment, (B) the item or items to which such proposed
adjustment relates, and (C) the facts and circumstances supporting such
adjustment. Sellers, on the one hand, and Purchaser, on the other hand, shall
use commercially reasonable efforts for fifteen (15) days after delivery of
Sellers' Adjustment Request to agree upon any adjustments to the Schedule of
Closing Date Working Capital Assets, the Schedule of Closing Date P&I Advances,
the Contract Escrow Offset Amount and the Total Purchase Price Calculation
proposed in Sellers' Adjustment Request. Upon the expiration of such 15-day
period, Sellers, on the one hand, or Purchaser, on the other hand, may demand in
writing that any or all disputes reflected in Sellers' Adjustment Request be
submitted for resolution to an independent certified public accounting firm of
recognized national standing designated by the requesting party, which firm
shall be subject to approval by the other party, such approval not to be
unreasonably withheld (such firm, the "Independent Accountants"). As promptly as
practicable, but in no event later than fifteen (15) days after such demand,
Sellers and Purchaser shall deliver to the Independent Accountants written
submissions supporting their respective positions with respect to such dispute.
The decision of the Independent Accountants with respect to the Schedule of
Closing Date Working Capital Assets, the Schedule of Closing Date P&I Advances,
the Contract Escrow Offset Amount, the Total Purchase Price Calculation and
Sellers' Adjustment Request, and any dispute relating thereto, shall be final
and binding on the parties hereto and may be enforced as an arbitration award in
any court of competent jurisdiction.
(b) The costs and expenses of the Independent
Accountants incurred in connection with this Section 1.08 or Section 1.04(b)
shall be borne equally as between Purchaser and Sellers. Upon delivery of the
Schedule of Closing Date Working Capital Assets,
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the Schedule of Closing Date P&I Advances, the Contract Escrow Offset Amount and
the Total Purchase Price Calculation, Purchaser shall make available to Sellers
all books, records, information and personnel used in preparing the Schedule of
Closing Date Working Capital Assets, the Schedule of Closing Date P&I Advances,
the Contract Escrow Offset Amount and the Total Purchase Price Calculation for
Sellers to evaluate the Schedule of Closing Date Working Capital Assets, the
Schedule of Closing Date P&I Advances, the Contract Escrow Offset Amount and the
Total Purchase Price Calculation.
(c) Within ten (10) days after the final
determination of the Total Purchase Price pursuant to Section 1.04(a) and this
Section 1.08, (i) if the Total Purchase Price exceeds the Estimated Purchase
Price, (A) Purchaser shall pay to the Estates on behalf of Sellers by wire
transfer of immediately available United States funds an amount equal to such
excess, without set-off or deduction of any kind, and (B) Purchaser and Sellers
shall deliver a written notice to the Escrow Agent pursuant to the Escrow
Agreement instructing the Escrow Agent to pay the Escrow Amount to the Estates
on behalf of Sellers by wire transfer of immediately available United States
funds, without set-off or deduction of any kind, within five (5) Business Days
of receipt of such instruction or (ii) if the Estimated Purchase Price exceeds
the Total Purchase Price, Purchaser and Sellers shall deliver a written notice
to the Escrow Agent pursuant to the Escrow Agreement instructing the Escrow
Agent to pay (A) an amount equal to such excess from the Escrow Amount to
Purchaser and (B) the remainder of the Escrow Amount, if any, to the Estates on
behalf of Sellers, in each case by wire transfer of immediately available United
States funds, without set-off or deduction of any kind, within five (5) Business
Days of receipt of such instruction; provided, that in the event the Escrow
Amount is insufficient to pay to Purchaser the full amount by which the
Estimated Purchase Price exceeds the Total Purchase Price, the Estates shall pay
to Purchaser the amount by which the Escrow Amount is insufficient by wire
transfer of immediately available United States funds, without set-off or
deduction of any kind.
(d) Interest on and other income from the Escrow
Amount shall be payable in accordance with the Escrow Agreement.
1.09 Assumption of Contracts Between Execution and
Closing.
(a) Section 1.09(a) of Sellers' Disclosure
Schedule lists each Contract that has been assumed by any Seller prior to the
date of this Agreement pursuant to an Order of the U.S. Bankruptcy Court,
provided that Section 1.09(a) of Sellers' Disclosure Schedule also identifies
each such Contract, if any, that Purchaser will not be assuming as an "Excluded
Contract."
(b) With respect to all Contracts entered into
prior to the Petition Date (x) as to which any Seller (other than the Non-Debtor
Sellers) is a party and (y) that have not been assumed or rejected prior to the
date of this Agreement pursuant to an Order of the U.S. Bankruptcy Court,
Purchaser agrees that such Seller shall assume and assign, and Sellers (other
than the Non-Debtor Sellers) covenant to seek to have such Seller assume and
assign, those items listed on Section 1.09(b) of Sellers' Disclosure Schedule
effective and conditioned upon the Closing or as set forth in the Plan;
provided, however, that Purchaser, at any time after the date of this Agreement
and prior to Closing, shall have the right to designate additional Contracts to
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be added to Section 1.09(b) of Sellers' Disclosure Schedule (other than any
Contract that has been designated as an "Excluded Contract"). Sellers shall be
responsible for paying, on or prior to Closing or as otherwise agreed between
Sellers, Purchaser and the applicable counterparty or established by the U.S.
Bankruptcy Court, any Cure Costs associated with the assumption of all Business
Contracts, Real Property Leases, Personal Property Leases and Business Licenses
listed on Section 1.09(a) or Section 1.09(b) of Sellers' Disclosure Schedule (as
it may be added to by Purchaser) (other than any Contract that has been
designated as an "Excluded Contract" on Section 1.09(b) of Sellers' Disclosure
Schedule).
1.10 [Intentionally Omitted]
1.11 Further Assurances; Post-Closing Cooperation. Subject
to the terms and conditions of this Agreement, at any time and from time to time
after the Closing, each of the parties hereto (or, with respect to each Seller,
its successors pursuant to the Plan) shall execute and deliver such other
documents and instruments of sale, transfer, conveyance, assignment and
confirmation, provide such materials and information and take such other actions
as may reasonably be necessary, proper or advisable, to more effectively
transfer, convey and assign to Purchaser, and to confirm Purchaser's title to,
all of the Transferred Assets, and, to the extent permitted by Law, to put
Purchaser in actual possession and operating control of the Business and the
Transferred Assets and to assist Purchaser in exercising all rights with respect
thereto, and to confirm the assumption by Purchaser of the Assumed Liabilities
and otherwise to cause Sellers and Purchaser to fulfill their obligations under
this Agreement and the Operative Agreements, provided, however, that neither
Purchaser nor the successors to each Seller pursuant to the Plan shall be
required to take any action pursuant to this Section 1.11 that would result in
Purchaser or such successor incurring any expense not otherwise contemplated
hereby. Notwithstanding anything to the contrary in this Agreement, Purchaser
agrees (and agrees to cause any successor or assign under this Agreement) to
transfer and assign to Sellers and their successors and assigns under this
Agreement (without cost or obligation to any Seller or successor or assign) any
third-party warranties that constitute Transferred Assets to the extent such
third-party warranties relate to any liabilities or obligations that any Seller
has retained under this Agreement in the event that any claim is made against
any Seller with respect to any such retained liability or obligation.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Except as set forth in Sellers' Disclosure Schedule delivered
by Sellers to Purchaser prior to the execution and delivery of this Agreement
("Sellers' Disclosure Schedule"), each Seller represents and warrants to
Purchaser that as of the date hereof:
2.01 Corporate Existence. Subject to the effect of the
commencement and continuance of the Reorganization Cases, each Seller is a
corporation, limited partnership, limited liability company or trust duly
incorporated, formed or created, validly existing and in good standing under the
Laws of its jurisdiction of incorporation or formation, and has all requisite
corporate, limited partnership, limited liability company or trust power and
authority to conduct the Business as and to the extent now conducted by it and
to own, use and lease its
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Assets and Properties. Except as set forth on Section 2.01 of Sellers'
Disclosure Schedule, the Sellers (other than OHC) constitute all of OHC's
Subsidiaries.
2.02 Authority. Subject to confirmation of the Plan, each
Seller has the requisite corporate, limited partnership, limited liability
company or trust power and authority to execute and deliver this Agreement and
each of the Operative Agreements to which it shall be a party, to perform its
obligations hereunder and thereunder and, upon entry of the Confirmation Order,
to consummate the transactions contemplated hereby and thereby. Subject to
confirmation of the Plan, the execution and delivery by each Seller of this
Agreement and the Operative Agreements and the performance by each Seller of its
obligations hereunder and thereunder, have been duly and validly authorized by
such Seller, and, upon entry of the Confirmation Order, no other corporate,
limited partnership, limited liability company or trust action on the part of
such Seller or its stockholders, partners, members, managers or trustees is
necessary. Subject to the entry of an Order of the U.S. Bankruptcy Court
approving the Bidding Procedures Motion (as to the provisions of this Agreement
covered thereby) or the entry of the Confirmation Order (as to the other
provisions of this Agreement), this Agreement has been duly and validly executed
and delivered by each Seller and constitutes, and upon the execution and
delivery by each Seller of the Operative Agreements, such Operative Agreements
will constitute, the legal, valid and binding obligations of such Seller,
enforceable against such Seller in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar Laws affecting the enforcement of creditors rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at Law).
2.03 [Intentionally Omitted].
2.04 No Conflicts. The execution and delivery by each
Seller of this Agreement do not, and the execution and delivery by each Seller
of each of the Operative Agreements to which such Seller shall be a party, the
performance by each Seller of its obligations under this Agreement and such
Operative Agreements and the consummation of the transactions contemplated
hereby and thereby, will not:
(a) conflict with or result in a violation or
breach of any of the terms, conditions or provisions of the Charter Documents of
any Seller;
(b) assuming that all consents, approvals and
notices contemplated by Section 2.05 have been obtained and all filings
described in such section have been made, result in a violation or breach of any
term or provision of any Law or Order applicable to any Seller, or any of the
Transferred Assets, other than such violations or breaches (i) which would not
materially and adversely affect the validity or enforceability of this Agreement
or any of such Operative Agreements or have a Material Adverse Effect on the
Condition of the Business or (ii) as would occur solely as a result of the
identity or the legal or regulatory status of Purchaser or any of its
Affiliates; or
(c) assuming that all consents, approvals and
notices contemplated by Section 2.05 have been obtained and all filings
described in such section have been made, except as would not materially and
adversely affect the ability of Sellers to consummate the
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transactions contemplated hereby or by any Operative Agreement, or to perform
their obligations hereunder or thereunder, and would not have a Material Adverse
Effect on the Condition of the Business, (i) result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require any Seller to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the
terms of; or (iv) result in or give to any Person any right of termination,
cancellation, acceleration or modification in or with respect to, or (v) result
in the creation or imposition of any Lien upon any Transferred Asset under, any
Contract or License to which any Seller, or by which any Transferred Asset, is
bound.
2.05 No Consents. No consent, approval or action of,
filing with or notice to any Governmental or Regulatory Authority or any other
Person is required to be obtained by any Seller or any of its Subsidiaries in
connection with the execution, delivery and performance of this Agreement or any
of the Operative Agreements, or the consummation of the transactions
contemplated hereby or thereby, except (a) for consents, approvals or actions of
and filings with or notice to the U.S. Bankruptcy Court, (b) for the necessary
filings by Sellers under the HSR Act and the expiration or earlier termination
of the applicable waiting period(s) thereunder, (c) those consents, approvals,
actions or filings as would be required solely as a result of the identity or
the legal or regulatory status of Purchaser or any of its Affiliates, (d) the
consents, approvals or notices set forth Section 2.05 of Sellers' Disclosure
Schedule and (e) where the failure to obtain any such consent, approval or
action, to make any such filing or to give any such notice would not materially
and adversely affect the ability of Sellers and their Subsidiaries to consummate
the transactions contemplated by this Agreement or any of such Operative
Agreements or to perform their obligations hereunder or thereunder or have a
Material Adverse Effect on the Condition of the Business.
2.06 Legal Proceedings. Except as set forth in Schedule
2.06 of Sellers' Disclosure Schedule and for Claims that will be provided for
under the Plan and the Confirmation Order:
(a) other than the Reorganization Cases, there
are no Actions or Proceedings pending or, to the Knowledge of Sellers,
threatened against, relating to or affecting, any Seller or any of its
Subsidiaries with respect to the Business or any of the Transferred Assets which
would reasonably be expected (i) to result in the issuance of an Order
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement or any of
the Operative Agreements or (ii) to have a Material Adverse Effect on the
Condition of the Business; and
(b) except for Orders of the U.S. Bankruptcy
Court, there are no Orders outstanding against any Seller or any of its
Subsidiaries which would have a Material Adverse Effect on the Condition of the
Business.
2.07 Compliance With Laws and Orders. No Seller or any of
its Subsidiaries is in violation of or in default under any Law or Order
applicable to the Business or the Transferred Assets the effect of which would
have a Material Adverse Effect on the Condition of the Business. Each Seller has
complied in all material respects with all applicable Laws and Orders applicable
to the Reorganization Cases.
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2.08 Benefit Plans; ERISA.
(a) Except as would not have a Material Adverse
Effect on the Condition of the Business, each Benefit Plan has been administered
and is in compliance with the terms of such Benefit Plan and all applicable
Laws.
(b) Each Benefit Plan intended to be qualified
under Section 401(a) of the Code has received a favorable determination from the
IRS and, except as would not have a Material Adverse Effect on the Condition of
the Business, to the Knowledge of Sellers, nothing has occurred since such
determination that would adversely affect such qualification.
(c) Except as would not have a Material Adverse
Effect on the Condition of the Business, no "accumulated funding deficiency" (as
such term is used in Section 412 or 4971 of the Code) has occurred during the
last five (5) years with respect to any Benefit Plan.
(d) No Benefit Plan has been terminated, where
such termination has resulted in liability under Title IV of ERISA that would
have a Material Adverse Effect on the Condition of the Business.
(e) To the Knowledge of Sellers, there are no
pending claims by or on behalf of any Benefit Plan or by any employee or
beneficiary covered under such Benefit Plan or otherwise involving any such
Benefit Plan (other than routine claims for benefits).
(f) No Benefit Plan is a "multiple employer
plan" within the meaning of Section 413 of the Code. Sellers are not obligated
to contribute to any "multiemployer plan" within the meaning of Section 3(37) of
ERISA.
(g) Sellers have not engaged in any "prohibited
transaction" within the meaning of Section 406 of ERISA or Section 4975 of the
Code that would result in any material liability of Sellers for any tax or
penalty imposed by Section 4975 of the Code.
2.09 Environmental Matters.
(a) Each Seller is, and at all times has been,
in full compliance with all Environmental Laws, and has not been and is not in
violation or liable under any Environmental Laws, except where the failure to be
in compliance or such violation would not have a Material Adverse Effect on the
Condition of the Business.
(b) Except with respect to Claims that have been
or will be discharged pursuant to the Confirmation Order, there are no
Environmental Claims pending or threatened in writing (or, to the Knowledge of
Sellers, orally) concerning any Transferred Asset that would have a Material
Adverse Effect on the Condition of the Business.
(c) None of the Transferred Assets contains or
is affected by the presence of any Hazardous Substance in a manner that would
have a Material Adverse Effect on the Condition of the Business.
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(d) Sellers have delivered to Purchaser (i) true
and complete copies of all Phase I reports and, if applicable, Phase II reports
possessed by Sellers for manufacturing facilities (whether active or idle) owned
by any Sellers, and (ii)true and complete copies and results of any other
reports, studies, analyses, tests or monitoring possessed by Sellers concerning
in any material respect compliance with any Environmental Laws with respect to
any Transferred Assets.
2.10 Financial Statements. Subject to the qualifications
expressed in the opinions of Sellers' auditors dated December 17, 2002 and
September 12, 2003 in connection with their audits of Sellers' September 30,
2002 and June 30, 2003 consolidated financial statements, respectively, Sellers'
consolidated audited financial statements for the year ended September 30, 2002
and for the nine-month period ended June 30, 2003 (collectively, the "OHC
Financial Statements"), as of their respective dates, fairly present in all
material respects the items contained therein and were derived from each
Seller's historical records and were prepared in accordance with GAAP, except as
otherwise noted therein. Sellers have not, since June 30, 2003, made any
material change in the accounting practices or policies applied in the
preparation of the OHC Financial Statements.
2.11 Taxes.
(a) Except as set forth in Section 2.11(a) of
Sellers' Disclosure Schedule, (i) each of the Sellers has timely filed all
material Tax Returns that it was required to file, taking into account any valid
extension of time, (ii) all such Tax Returns were correct and complete in all
material respects, and (iii) all material Taxes owed by each Seller (whether or
not shown on any Tax Return) have been paid.
(b) To the Knowledge of Sellers, Purchaser will
not be required to deduct or withhold any amount in connection with the
transactions contemplated by the Agreement by reason of the domicile of Sellers,
including pursuant to Section 1445(a) of the Code.
2.12 Title to Transferred Assets. Except as set forth in
Schedule 2.12 of Sellers' Disclosure Schedule, each Seller has good and
indefeasible title to, or in the case of leaseholds, valid leasehold interests
in, its Assets and Properties that comprise part of the Transferred Assets, free
and clear of any Liens other than Permitted Liens or Liens that will be released
or discharged pursuant to the Confirmation Order or otherwise at or prior to the
Closing.
2.13 Entire Business. Except as disclosed in Section 2.13
of Sellers' Disclosure Schedule, the sale of the Transferred Assets by Sellers
to Purchaser pursuant to this Agreement will effectively convey to Purchaser all
assets, including all of the tangible and intangible property, used by Sellers
(whether owned, leased or held under license by Sellers, by any of their
Affiliates or by others) in connection with the conduct of the Business as
conducted by Sellers as of the date of this Agreement, including, without
limitation, all tangible Assets and Properties of Sellers reflected in the
Financial Statements and Assets and Properties acquired since the date of the
Financial Statements in the conduct of the Business, other than the Excluded
Assets and Assets and Properties disposed of since such date. Except as
disclosed in Section 2.13 of Sellers' Disclosure Schedule, there are no shared
facilities or services that are used both
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in connection with the Business and in connection with any business or other
operations of Sellers or any of their respective Affiliates other than the
Business. Sellers have provided to Purchaser true and complete copies of all
Servicing Agreements.
2.14 Insurance. All material insurance policies owned by
or issued to any Seller, including policies for fire, life, theft, product
liability, public liability, property damage, other casualty, workers'
compensation, employee health and welfare, title, property and liability, with
respect to the Business and/or the Transferred Assets are in full force and
effect.
2.15 Labor Relations. No Seller is a party to or bound by
any collective bargaining agreement, and there are no labor unions or other
organizations representing or, to the Knowledge of Sellers, purporting to
represent or attempting to represent any Employees. There has not occurred or,
to the Knowledge of Sellers, been threatened any material strike, slowdown,
picketing or work stoppage with respect to the Employees. There are no labor
disputes currently subject to any grievance procedure, arbitration or
litigation, and there is no representation petition pending or, to the Knowledge
of Sellers, threatened with respect to any Employee. No Seller has received any
written (or, to the Knowledge of Sellers, oral) notice of the intent of any
Governmental or Regulatory Authority responsible for the enforcement of labor or
employment laws to conduct an investigation relating to the Business, and no
such investigation is in progress.
2.16 No Undisclosed Liabilities. No Seller has any
material Liabilities of any nature, except (a) to the extent disclosed, reserved
against or otherwise reflected in the OHC Financial Statements, (b) for
Liabilities not required by GAAP to be accrued, disclosed or reserved against in
the OHC Financial Statements and (c) for Liabilities that (i) were incurred
after September 30, 2003 in the Ordinary Course of Business and (ii) have not
had and would not have a Material Adverse Effect on the Condition of the
Business.
2.17 Absence of Changes; Other Business Matters. (a) From
September 30, 2003 to the date of this Agreement, there has not occurred a
Material Adverse Effect on the Condition of the Business or any change, event or
development that could reasonably be expected to result in a Material Adverse
Effect on the Condition of the Business.
(b) To the Knowledge of Sellers, there is no
enforcement action pending or threatened in writing by the U.S. Department of
Housing and Urban Development or any other Governmental or Regulatory Authority
or any ongoing disruption of supply of raw materials that, in any such case,
could reasonably be expected to materially disrupt production at any plant.
(c) Except as set forth in Section 2.17(c) of
Sellers' Disclosure Schedule, to the Knowledge of Sellers, no Retail Sales
Center Manager or Plant General Manager (each, a "Location Manager") employed as
of the date of this Agreement at any plant or retail store of Sellers has
provided written notice of his or her intention to terminate employment with
Sellers, whether as a result of the transactions contemplated by this Agreement
or otherwise, nor has any Location Manager terminated his or her employment with
Sellers during the three months preceding the date of this Agreement.
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2.18 Brokers' Fees. Sellers have no liability or
obligation to pay any fees or commissions to any broker or finder with respect
to the transactions contemplated by this Agreement for which Purchaser could
become liable or obligated.
2.19 Disclaimer of other Representations and Warranties.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE II, SELLERS MAKE NO REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF ANY OF THEIR
OR THEIR SUBSIDIARIES' ASSETS (INCLUDING THE TRANSFERRED ASSETS), LIABILITIES OR
OPERATIONS, INCLUDING WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY
EXPRESSLY DISCLAIMED. Purchaser hereby acknowledges and agrees that, except to
the extent specifically set forth in this Article II, Purchaser is purchasing
the Transferred Assets on an "AS-IS, WHERE-IS" basis and is relying on its own
investigation and analysis in entering into this Agreement and consummating the
transactions contemplated hereby. Without limiting the generality of the
foregoing, Sellers make no representation or warranty, and none shall be implied
at law or in equity, regarding: any assets other than the Transferred Assets;
any projections, estimates or budgets heretofore delivered or made available to
Purchaser of future revenues, expenses or expenditures, future results of
operations (or any component thereof), future cash flows or future financial
condition (or any component thereof) of the Business; or the value of the
Business or any of the Transferred Assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers that as of the
date hereof:
3.01 Corporate Existence. Purchaser is a corporation duly
incorporated, validly existing and in good standing under the Laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to conduct its business as and to the extent now conducted and to own,
use and lease its Assets and Properties.
3.02 Authority. Purchaser has the requisite corporate
power and authority to execute and deliver this Agreement and each of the
Operative Agreements to which it shall be a party and to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery by Purchaser of this Agreement and such
Operative Agreements, and the performance by Purchaser of its obligations
hereunder and thereunder, have been duly and validly authorized by Purchaser,
and no other corporate action on the part of Purchaser or its stockholders is
necessary. This Agreement has been duly and validly executed and delivered by
Purchaser and constitutes, and upon the execution and delivery by Purchaser of
the Operative Agreements, such Operative Agreements will constitute, legal,
valid and binding obligations of Purchaser, enforceable against Purchaser in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar Laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at Law).
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3.03 No Conflicts. The execution and delivery by Purchaser
of this Agreement do not, and the execution and delivery by Purchaser of the
Operative Agreements, the performance by Purchaser of its obligations under this
Agreement and such Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not:
(a) conflict with or result in a violation or
breach of any of the terms, conditions or provisions of the Charter Documents of
Purchaser,
(b) assuming that all consents, approvals and
notices contemplated by Section 3.04 have been obtained and all filings
described in such section have been made, result in a violation or breach of any
term or provision of any Law or Order applicable to Purchaser or any of its
Assets and Properties, other than such violations or breaches as would occur
solely as a result of the identity or the legal or regulatory status of Sellers
or any of their respective Affiliates; or
(c) assuming that all consents, approvals and
notices contemplated by Section 3.04 have been obtained and all filings
described in such section have been made, except as would not adversely affect
the ability of Purchaser to consummate the transactions contemplated hereby or
by any of such Operative Agreements or to perform its obligations hereunder or
thereunder, (i) result in a violation or breach of (ii) constitute (with or
without notice or lapse of time or both) a default under, (iii) require
Purchaser or any of its Subsidiaries to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the term of, or (iv) result in or give to any Person any right of termination,
cancellation, acceleration or modification in or with respect to, or (v) result
in the creation or imposition of any Lien upon Purchaser or any of its Assets
and Properties under, any Contract or License to which Purchaser or any of its
Assets and Properties is bound.
3.04 No Consents. No consent, approval or action of,
filing with or notice to any Governmental or Regulatory Authority or any other
Person is required to be obtained by Purchaser or any of its Subsidiaries in
connection with the execution, delivery and performance of this Agreement or any
of the Operative Agreements or the consummation of the transactions contemplated
hereby or thereby, except (a) for consents, approvals or actions of, and filings
with or notices to the U.S. Bankruptcy Court, (b) for necessary filings by
Purchaser or its Affiliates under the HSR Act and the expiration or earlier
termination of the applicable waiting period(s) thereunder, (c) those consents,
approvals, actions or filings as would be required solely as a result of the
identity or the legal or regulatory status of Sellers or any of their respective
Affiliates and (d) where the failure to obtain any such consent, approval or
action, to make any such filing or to give any such notice would not materially
and adversely affect the ability of Purchaser to consummate the transactions
contemplated by this Agreement or any of such Operative Agreements or to perform
its obligations hereunder or thereunder.
3.05 Legal Proceedings. Except for the Reorganization
Cases, there are no Actions or Proceedings pending or, to the Knowledge of
Purchaser, threatened against, relating to or affecting, Purchaser or any of its
Assets and Properties which would reasonably be expected to result in the
issuance of an Order restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by this
Agreement or any of the Operative Agreements.
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3.06 Financing. Purchaser has sufficient cash and/or
available credit facilities to pay the Total Purchase Price and to make all
other necessary payments of fees and expenses of Purchaser in connection with
the transactions contemplated by this Agreement and the Operative Agreements.
3.07 Brokers' Fees. Purchaser has no liability or
obligation to pay any fees or commissions to any broker or finder with respect
to the transactions contemplated by this Agreement for which Sellers could
become liable or obligated.
ARTICLE IV
COVENANTS OF SELLERS
Each Seller, on the one hand, and Purchaser, on the other,
covenants and agrees with each other that, at all times from and after the date
hereof until the Closing (and after the Closing to the extent expressly
contemplated herein), each Seller and Purchaser will, and will cause each of its
Subsidiaries to, comply with all covenants and provisions of this Article IV,
except to the extent Purchaser, in the case of each Seller, and Sellers, in the
case of Purchaser, may otherwise consent in writing.
4.01 Regulatory and Other Approvals.
(a) Following entry of an Order of the U.S.
Bankruptcy Court approving the Bidding Procedures, Sellers will, and will cause
their respective Subsidiaries to, as promptly as practicable, (i) use
commercially reasonable efforts to obtain all consents, approvals or actions of,
make all filings with and give all notices to Governmental or Regulatory
Authorities or any other Person required of Sellers for Sellers and Purchaser to
consummate the transactions contemplated hereby and by the Operative Agreements,
including those described in Section 2.05 of Sellers' Disclosure Schedule,
provided, however, that Sellers and their Subsidiaries shall be under no
obligation to provide any financial incentive to any Person for its grant of any
consent or approval required to consummate the transactions contemplated hereby
and by the Operative Agreements, (ii) provide such other information and
communications to such Governmental or Regulatory Authorities or other Persons
as such Governmental or Regulatory Authorities or other Persons may reasonably
request in connection therewith and (iii) provide reasonable cooperation to
Purchaser in connection with the performance of its obligations under Section
5.01. Sellers will, and will cause their respective Subsidiaries to, provide
prompt notification to Purchaser when any such consent, approval, action, filing
or notice referred to in clause (i) above is obtained, taken, made or given, as
applicable and will advise Purchaser of any communications (and, unless
precluded by applicable Law, provide copies of any such communications that are
in writing) with any Governmental or Regulatory Authority or other Person
regarding any of the transactions contemplated by this Agreement or any of the
Operative Agreements.
(b) In furtherance and not in limitation of the
covenants of Sellers in Sections 4.01(a) and 4.02, following the issuance by the
U.S. Bankruptcy Court of an Order approving the Bidding Procedures Motion,
Sellers shall, and shall cause their Subsidiaries to, use commercially
reasonable efforts to resolve such objections, if any, as may be asserted with
respect to the transactions contemplated hereby made by any Governmental or
Regulatory
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Authority. If any action or proceeding in any court or other tribunal is
instituted or threatened to be instituted by any Governmental or Regulatory
Authority challenging any of the transactions contemplated hereby as violative
of any Law, Sellers shall, and shall cause their Subsidiaries to, use
commercially reasonable efforts to take such action (but not including (except
as contemplated by the proviso to Section 6.05) holding separate or divesting or
agreeing to hold separate or to divest any of the businesses, product lines or
assets of Sellers or any of its Affiliates) as will(i) resolve any objections
which any such Governmental or Regulatory Authority may have to such
transactions, (ii) avoid the entry of, or effect the dissolution of, any
injunction, temporary restraining Order or other Order which has, or will have,
the effect of preventing or interfering with the consummation of any of the
transactions contemplated hereby and (iii) obtain approval of the transactions
contemplated hereby by any Governmental or Regulatory Authority.
4.02 HSR Filing. In addition to and without limiting the
covenants contained in Section 4.01, following the issuance by the U.S.
Bankruptcy Court of an Order approving the Bidding Procedures Motion, Sellers
will, and will cause their respective Subsidiaries to, (a) make the filings
required of Sellers or their respective Affiliates under the HSR Act within five
(5) Business Days after the issuance of such Order approving the Bidding
Procedures Motion but in no event later than December 16, 2003, (b) comply at
the earliest practicable date with any request for additional information
received by Sellers or their respective Affiliates from the Federal Trade
Commission ("FTC") or the Antitrust Division of the Department of Justice
("DOJ") pursuant to the HSR Act, and (c) cooperate with Purchaser in connection
with Purchaser's filing under the HSR Act and in connection with resolving any
investigation or other inquiry concerning the transactions contemplated by this
Agreement commenced by either the FTC or the DOJ or state attorneys general.
4.03 Bidding Procedures. Each Seller acknowledges that
this Agreement is the culmination of an extensive process undertaken by Sellers
to identify and negotiate a transaction with a bidder who is prepared to pay the
highest and best purchase price for the Transferred Assets while assuming or
otherwise satisfying the Assumed Liabilities. Set forth as Exhibit H hereto are
the bidding procedures (the "Bidding Procedures") to be employed, subject only
to U.S. Bankruptcy Court approval (the form of which is also set forth in
Exhibit H), with respect to the sale of the Business. Within two (2) Business
Days of the date of this Agreement, Sellers (other than the Non-Debtor Sellers)
will file a motion with the U.S. Bankruptcy Court for the approval of the
Bidding Procedures and the provisions of this Agreement to be performed by
Sellers (other than the Non-Debtor Sellers) before the Closing (including
Sections 1.09, 4.03, 4.04, 4.05 and 4.07), and Sections 8.01 and 8.02 of this
Agreement (including the Break-Up Fee) (the "Bidding Procedures Motion"). The
hearing on the Bidding Procedures Motion shall be held after the date of this
Agreement and the parties shall work in good faith to obtain a hearing date as
early as possible, which, in any event, shall be no later than December 15,
2003. The sale of the Business is subject to competitive bidding as set forth in
the Bidding Procedures and approval of the Bidding Procedures Motion by the U.S.
Bankruptcy Court. The overbid provisions and related bid protections in the
Bidding Procedures are designed to compensate Purchaser for its efforts and
agreements to date and to facilitate a full and fair process designed to
maximize the value of the Transferred Assets for the benefit of each Seller's
stakeholders.
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4.04 Conduct of Business. Except as contemplated
by this Agreement or approved by Purchaser, Sellers shall, and shall cause their
respective Subsidiaries to, operate the Business in the Ordinary Course of
Business. Without limiting the generality of the foregoing, except as
contemplated by this Agreement, Sellers shall, and shall cause their respective
Subsidiaries to, use commercially reasonable efforts to:
(a) preserve intact the present business
organization and reputation of the Business in all material respects, keep
available (subject to dismissals and retirements in the Ordinary Course of
Business) the services of the key Employees, including all Location Managers
employed by it as of the date hereof, and maintain the goodwill of key
customers, suppliers and lenders and other Persons with whom Sellers or any of
their Subsidiaries otherwise have significant relationships in connection with
the Business;
(b) maintain the Transferred Assets in good
working order and condition, ordinary wear and tear excepted;
(c) maintain in effect their existing (or
comparable replacement) property damage, liability and other insurance with
respect to the Transferred Assets and/or the Business; and
(d) maintain in effect the Business Licenses.
4.05 Certain Restrictions. Except as provided for in this
Agreement or the Operative Agreements, contemplated by the Plan or approved by
Purchaser, Sellers will refrain from:
(a) other than in the Ordinary Course of
Business, acquiring or disposing of or incurring any Lien (other than a
Permitted Lien) on any Assets and Properties used in or relating to the
Business, other than (i) any disposals pursuant to an Order of the U.S.
Bankruptcy Court, (ii) any disposals or Liens consented to in writing by
Purchaser and (iii) any disposals of or Liens on Excluded Assets;
(b) authorizing, issuing, selling or otherwise
disposing of any shares of, or securities convertible into or exchangeable or
exercisable for or any Option with respect to any shares of, capital stock or
share capital or partnership interests or membership interests of any Seller, or
modifying or amending any right of any holder of outstanding shares of capital
stock or share capital or partnership interests or membership interests of or
Option with respect to any Seller (except to the extent any such action would
have no adverse effect on the benefits to which Purchaser is entitled under this
Agreement);
(c) taking any action with respect to any
merger, consolidation, recapitalization, reorganization, liquidation or
dissolution of any Seller (except to the extent any such action would have no
adverse effect on the benefits to which Purchaser is entitled under this
Agreement);
(d) other than in the Ordinary Course of
Business, entering into, amending, modifying, terminating (partially or
completely), granting any waiver under or giving any consent with respect to any
Business Contract, Real Property Lease, Personal Property Lease
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or Business License, provided that after the date of this Agreement, Sellers
shall not enter into any Computer/Telecommunications Contracts that would
involve commitments on the part of Sellers for an amount, individually or when
aggregated with all other Computer/Telecommunications Contracts entered into
after the date of this Agreement, in excess of $200,000 (it being understood
that any amendments to or extensions of existing Computer/Telecommunications
Contracts shall be deemed Contracts entered into after the date of this
Agreement for purposes of this Section 4.05(d)); and provided, further, that
after the date of this Agreement, Sellers shall not enter into any Contract
(other than retail customer purchase contracts, purchase orders, extensions or
renewals of Contracts relating to retail store locations and
Computer/Telecommunications Contracts) that either (x) is not cancelable for any
reason without penalty upon no more than 30 days prior written notice or (y)
does not individually involve a monetary or other obligation (direct or
contingent) by any Seller in excess of $200,000, or, when aggregated with all
other such Contacts, in excess of $500,000; and provided, further, that nothing
in this Section 4.05 shall limit the ability of Sellers to renew, extend, amend
or otherwise modify the Sellers' DIP Facility or the Sellers' WFF Facility;
(e) other than intercompany dividends or
distributions, declaring, setting aside or paying any dividend or other
distribution payable in cash, stock or property with respect to its capital
stock, partnership interests or membership interests, as applicable, or
redeeming, repurchasing or otherwise acquiring any shares of its capital stock,
partnership interests or membership interests, as applicable;
(f) other than in the Ordinary Course of
Business, incurring any indebtedness for money borrowed or issuing or selling
any debt securities or warrants or rights to acquire any debt securities of
Sellers other than under Sellers' DIP Facility;
(g) except as required under existing agreements
or in the Ordinary Course of Business in connection with any promotions,
granting any material increase in the fringe benefits or compensation payable or
to become payable by Sellers to any Employee or Executive Employee or director
thereof;
(h) except as a result of, or relating to, the
actions contemplated by this Agreement, adopting, amending or otherwise
materially increasing, or accelerating the payment or vesting of the amounts
payable or to become payable to any Employee or Executive Employee or director
of any Seller under any existing Benefit Plan;
(i) entering into or amending in any material
respect any existing employment or severance agreement with, or, except in
accordance with the existing written policies of Sellers or existing contracts
or agreements, granting any severance or termination pay to any Employee or
Executive Employee or director of any Seller; or
(j) materially changing the accounting
principles used by it in effect as of the date hereof unless required by GAAP.
4.06 Affiliate Transactions. Prior to the Closing and
except as provided in the Plan, Sellers will not engage in any transaction with
any officer, director or Affiliate of any
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Seller outside the Ordinary Course of Business, other than as mandated by an
Order of the U.S. Bankruptcy Court.
4.07 Bankruptcy Court Approvals. The provisions of this
Section 4.07 shall terminate in the event that Purchaser is not the Successful
Bidder pursuant to the Bidding Procedures:
(a) Within seven (7) Business Days of the
issuance by the U.S. Bankruptcy Court of an Order approving the Bidding
Procedures Motion, each Seller (other than the Non-Debtor Sellers) shall file
the Plan and the Disclosure Statement with the U.S. Bankruptcy Court to effect,
among other things, the transactions contemplated by this Agreement upon the
terms and conditions set forth herein, and thereafter Sellers (other than the
Non-Debtor Sellers) shall use commercially reasonable efforts to obtain the
entry of the Confirmation Order as soon as practicable. Sellers (other than the
Non-Debtor Sellers) shall consult with and seek the advice of Purchaser
regarding any description of Purchaser in the Plan or the Disclosure Statement.
Except as Sellers may in their good faith determine is otherwise required as a
result of fiduciary duties imposed by Law, Sellers shall not file any pleading
or take other action in the U.S. Bankruptcy Court with respect to this
Agreement, the Plan, or the consummation of the transactions contemplated hereby
or thereby in a manner that has or is reasonably likely to have a Material
Adverse Effect on the value of the Business, without first obtaining the written
consent of Purchaser, which consent shall not be unreasonably withheld;
provided, that nothing contained in the foregoing shall be construed to limit in
any way the Sellers' rights under this Agreement, including, without limitation,
the rights of Sellers under Article VIII hereof; provided further, that Sellers
shall be entitled to file pleadings with or take other actions in the U.S.
Bankruptcy Court as a result of their acceptance of a proposal for an
Alternative Transaction as contemplated by Section 8.01. Sellers shall promptly
notify Purchaser if at any time before the Effective Date they become aware that
the Disclosure Statement contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading. In such event, Sellers (other than the
Non-Debtor Sellers) shall make the appropriate filings with the U.S. Bankruptcy
Court regarding such misstatement or omission and take such other actions to
address such misstatement or omission as required by the U.S. Bankruptcy Court.
(b) Sellers (other than the Non-Debtor Sellers)
agree to use reasonable efforts to ensure that the Disclosure Statement, as
filed with the U.S. Bankruptcy Court, contains "adequate information" (as that
term is defined in Section 1125 of the Bankruptcy Code). The Disclosure
Statement shall contain a recommendation of each of Sellers (other than the
Non-Debtor Sellers) that holders of claims against or interests in the Sellers
entitled to vote on the Plan vote to accept the Plan, subject to Sellers' right
to withdraw such recommendation upon their acceptance of a proposal for an
Alternative Transaction or upon termination of this Agreement as contemplated by
Section 8.01.
(c) If the Confirmation Order or any other
Orders of the U.S. Bankruptcy Court relating to this Agreement, the Disclosure
Statement, the solicitation of acceptance of the Plan or the confirmation of the
Plan shall be appealed by any party (or a petition for certiorari or motion for
rehearing or reargument shall be filed with respect thereto), Sellers agree to
take such steps, if any, as may be reasonable and appropriate to prosecute such
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petition or motion or defend against such appeal, petition or motion and to use
commercially reasonable efforts to obtain an expedited resolution of any such
appeal, petition or motion.
4.08 Tax Matters.
(a) Subject to Section 1146 of the Bankruptcy
Code, Sellers shall cooperate with Purchaser in the preparation, execution and
filing of all returns, questionnaires, applications or other documents regarding
any real property transfer or gains, sales, use, transfer, value added, share
transfer and stamp duty or taxes, any transfer, recording, registration and
other fees, and any similar Taxes (together, the "Conveyance Taxes") which
become payable in connection with the transactions contemplated by this
Agreement. To the extent any of the transactions contemplated by this Agreement
are not exempted from any such Conveyance Tax under Section 1146 of the
Bankruptcy Code, Purchaser shall be liable for and shall hold Sellers and the
Estates harmless against such Conveyance Taxes.
(b) Except as otherwise provided in this
Agreement, Purchaser shall be responsible for and shall pay all Taxes levied by
any foreign, federal, state, municipal or local taxing authority in any
jurisdiction with respect to the ownership, use or leasing of the Transferred
Assets after the Closing Date, and Sellers shall be responsible for and shall
pay all such Taxes with respect to the ownership, use or leasing of the
Transferred Assets on or prior to the Closing Date. To the extent that Sellers
have paid, prior to Closing, any Taxes for which Purchaser would be responsible
pursuant to the previous sentence, Sellers shall provide written notice of such
amounts no later than 30 days after the Closing Date, and Purchaser shall,
within five Business Days of receipt of such notice, pay such amounts to the
Estates.
4.09 Access to Information. Each Seller shall, and shall
cause its respective officers, employees, and other Representatives to, afford
to Purchaser and its Representatives access, at all reasonable times and in a
manner so as not to interfere with (a) its normal business operations, (b) the
Bidding Procedures or (c) any efforts by Sellers to obtain capital or financing
for or otherwise to effectuate any of the alternatives to the transactions
contemplated by this Agreement set forth in the Plan, to its properties, books,
contracts, commitments, personnel and records relating to the Business and
shall, and shall cause its respective officers, employees and other
Representatives to, furnish to Purchaser any and all information concerning its
properties, financial condition, operations and personnel relating to the
Business as Purchaser may from time to time reasonably request.
4.10 Post-Closing Payments. Any payments to which
Purchaser is entitled under this Agreement which are received by Sellers or the
Estates following the Effective Time shall be received by Sellers or the
Estates, as the case may be, solely in trust for Purchaser and the full amount
of such payments (without deduction or set-off of any kind) shall be promptly
remitted to or for the account of Purchaser.
4.11 Employees. Sellers shall grant Purchaser access to
all Employees to allow Purchaser to evaluate such Employees for potential
employment with Purchaser after the Closing Date, subject to any such Employee's
satisfaction of any and all employment requirements imposed by Purchaser. Prior
to the Effective Time, Sellers shall terminate the
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employment of all Employees as of the close of business on the day immediately
preceding the Closing Date other than any Employees who shall continue to be
employed by OHC after the Effective Time. On or before the third Business Day
prior to the Closing Date, Purchaser shall offer to hire, or cause one or more
of its Affiliates to offer to hire, a minimum of eighty percent (80%) of all
Eligible Employees of Sellers on the date of this Agreement on terms, including
compensation and benefits, equivalent to employees of Purchaser or its
Affiliates in comparable positions. All Eligible Employees who are offered
employment by Purchaser and accept such offer of employment shall be hired by
Purchaser, or one or more of its Affiliates, effective as of the Closing Date.
Purchaser shall, and shall cause its Affiliates to, (i) waive all limitations as
to insured preexisting health conditions, exclusions and waiting periods with
respect to participation and coverage requirements applicable to the Eligible
Employees hired by Purchaser or its Affiliates under any welfare benefit, 401(k)
and similar plans that such Eligible Employees may be eligible to participate in
after the Closing other than limitations or waiting periods that are already in
effect with respect to such Eligible Employees and that have not been satisfied
as of the Closing Date under any such plan maintained for such Eligible
Employees immediately prior to the Closing Date, and (ii) provide each such
Eligible Employee with credit for the years of service of such Eligible Employee
with Sellers under any welfare benefit, 401(k) and similar plan in which the
Eligible Employees are eligible to participate after the Closing. Sellers shall
be liable and responsible for and pay any and all liabilities and obligations
(a) under the WARN Act arising out of or resulting from termination by Sellers
of Sellers' Employees, and (b) otherwise associated with the termination and
severance by Sellers of all Employees of Sellers or the retention of the
Employees who continue to be employed by OHC after the Effective Time, including
any and all obligations to provide such Employees with continued health,
disability, life or other retirement benefits (whether covered by insurance or
not), including COBRA benefits (all such liabilities and obligations,
collectively, the "Employee Retained Liabilities").
4.12 Environmental Reports. Promptly following the date
hereof, Sellers shall cause to be prepared, at Sellers' sole expense, Phase I
Reports for all of its manufacturing facilities for which such a report has not
been delivered to Purchaser. Sellers shall deliver to Purchaser a copy of each
Phase I Report promptly upon its receipt by Sellers provided that copies of all
such Phase I Reports shall be delivered to Purchaser prior to December 13, 2003
and, in all events, seventy-five percent (75%) of such Phase I Reports shall be
delivered to Purchaser no later than six (6) Business Days prior to the Auction
and the balance of such Phase I Reports shall be delivered to Purchaser no later
than four (4) Business Days prior to the Auction. In the event any conditions
described in any such report with respect to a non-operating manufacturing
facility could reasonably be expected to result in any remediation costs being
imposed on Purchaser or any of its Affiliates, Purchaser shall be entitled (in
its sole discretion) to designate such manufacturing facility as an Excluded
Asset by providing notice of such designation to Sellers no later than two (2)
Business Days prior to the Auction and, following such notice, such
manufacturing facility shall constitute an Excluded Asset for all purposes of
this Agreement; provided, that any such designation shall have no effect on the
purchase price under this Agreement. In the event any conditions described in
such reports with respect to manufacturing facilities (other than any
manufacturing facility designated as an Excluded Asset pursuant to the preceding
sentence) could reasonably be expected to result in remediation costs being
imposed on Purchaser and any of its Affiliates in the aggregate in excess of
$5,000,000, Purchaser shall be entitled to terminate this Agreement, without any
Liability on its part (or on the part of any of its Representatives and
Affiliates), by providing notice of such
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termination to Sellers no later than two (2) Business Day prior to the Auction;
provided, however, that this Agreement shall not be terminated if, following
such notice of termination by Purchaser but no later than one (1) Business Day
prior to the Auction, Sellers notify Purchaser of Sellers' election to pay
pursuant to arrangements reasonably satisfactory to Purchaser (or deduct from
the purchase price under this Agreement) the amount of such remediation costs in
excess of $5,000,000 and further provided that (if the Closing occurs) under no
circumstance shall Sellers be liable for any such remediation costs under
$5,000,000 and such remediation costs shall not affect the purchase price
hereunder. In the event of any termination by Purchaser solely under this
Section 4.12, Purchaser shall not be entitled to the Break-Up Fee.
4.13 Pooling and Servicing Agreements. Section 4.13 of
Sellers' Disclosure Schedule lists the pooling and servicing agreements that
contain the embedded servicing agreements under which Oakwood Servicing Holdings
Co., LLC ("OSHC") is currently the "Servicer" (collectively, the "Servicing
Agreements"). Prior to the Effective Time, OSHC shall resign from its duties and
obligations as "Servicer" for the term securitizations under all of the
Servicing Agreements other than those (if any) listed as "Excluded Servicing
Agreements" on Section 4.13 of Sellers' Disclosure Schedule, and the respective
securitization trustee under each such Servicing Agreement shall have appointed
a subsidiary of Purchaser (designated by Purchaser) as the successor servicer
(such subsidiary, the "New Servicer") under each such Servicing Agreement;
provided, that Vanderbilt Mortgage and Finance, Inc., a Tennessee corporation
("Vanderbilt"), shall be the subservicer to the New Servicer or, at Purchaser's
election, the New Servicer. In connection with each such appointment, (a) the
applicable securitization trustee shall confirm that the New Servicer's
servicing responsibilities under each of the Servicing Agreements shall be
solely on a "going forward" basis, (b) the applicable securitization trustee
shall confirm that the New Servicer shall not be liable or responsible for any
obligations, liabilities or expenses of any type whatsoever (whether direct,
contingent, known, unknown or otherwise), arising from or relating to acts,
omissions, occurrences, defaults or breaches occurring or failing to occur under
or in connection with the Servicing Agreements or related securitization
facility documents (including the related pooling and servicing agreement) prior
to the appointment of the New Servicer, (c) the applicable securitization
trustee shall confirm that the New Servicer is entitled to all the rights of the
Servicer under the Servicing Agreements (including rights to servicing fees,
advance reimbursements etc.) without setoff or deduction for any prior
Servicer's acts or omissions, (d) the applicable securitization trustee shall
confirm that the rates and priority of the Servicing Fees payable to New
Servicer are the same as the rates and priority of the Servicing Fees previously
paid to OSHC (which rates are set forth in Section 4.13 of Sellers Disclosure
Schedule and which Servicing Fee payments are senior in priority with respect to
securitization trust payments and distributions), and (e) confirmation shall be
provided that the existing Subservicing Agreements between OSHC and Oakwood
Acceptance Corporation ("OAC") have been terminated. Prior to the Effective
Time, the requisite consents, notices and approvals in order to validly effect
the foregoing shall have been obtained, including the requisite consents from
each of the trustees and requisite ratings agency letters, as applicable. Unless
otherwise directed by Purchaser in writing, the Sellers acknowledge and covenant
that Sellers shall use their good faith efforts to effect the foregoing, and
Sellers, upon request by Purchaser, will cooperate with Purchaser in allowing
representatives of Purchaser, following approval of the Bidding Procedures
Motion by the U.S. Bankruptcy Court, to discuss and negotiate successor servicer
terms directly with the applicable securitization trustees, but in the event the
Sellers are unable to obtain the requisite consents,
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notices, approvals and confirmations in order to validly effect the foregoing
after pursuing such good faith efforts, the parties agree that in lieu of
obtaining the consents and approvals referred to in the immediately preceding
sentence, Sellers may satisfy their obligations under this Section 4.13 by
commencing a voluntary Chapter 11 bankruptcy on behalf of OSHC and assuming and
assigning the Servicing Agreements to the New Servicer pursuant to an order
entered under Section 365 of the Bankruptcy Code, provided that, for Sellers to
have satisfied their obligations under this Section 4.13 through such an
order,(i) the order authorizing such assumption and assignment shall be in a
form reasonably satisfactory to the New Servicer, (ii) at least ten days shall
have passed since the entry of such order and such order shall not be subject to
any stay, appeal or motion for rehearing, reconsideration or revocation, and
(iii) such order shall provide that (a) the New Servicer's servicing
responsibilities under the Servicing Agreements shall be solely on a "going
forward" basis, (b) the New Servicer shall not be liable or responsible for any
obligations, liabilities or expenses of any type whatsoever (whether direct,
contingent, known, unknown or otherwise), arising from or relating to acts,
omissions, occurrences, defaults or breaches occurring or failing to occur under
or in connection with the Servicing Agreements or related securitization
facility documents (including the related pooling and servicing agreement) prior
to the appointment of the New Servicer, (c) the New Servicer shall be entitled
to all the rights of the Servicer under the Servicing Agreements (including
rights to servicing fees, advance reimbursements etc.) without setoff or
deduction for any prior Servicer's acts or omissions, (d) the rates and priority
of the Servicing Fees payable to New Servicer under the Servicing Agreements are
the same as the rates and priority of the Servicing Fees previously paid to OSHC
(which rates are set forth in Section 4.13 of Sellers Disclosure Schedule and
which Servicing Fee payments are senior in priority with respect to
securitization trust payments and distributions), and (e) the existing
Subservicing Agreements between OSHC and OAC have been or are thereby
terminated. In connection with any motion seeking the entry of such assignment
and assumption order, the applicable securitization trustees, securitization
certificateholders and any and all creditors of OSHC or OAC with claims (as such
term is defined in Section 101(12) of the Bankruptcy Code) ("Potential
Claimants") shall have received at least fifteen days prior written notice in
accordance with the Bankruptcy Code (including any applicable rules) and all
parties in interest, including the Potential Claimants shall have had good and
sufficient time to object or otherwise respond to the relevant motion period.
Any costs in connection with such assumption and assignment (including any cure
costs) shall be borne by Sellers. In addition, those Sellers who hold residual
interests in REMIC trusts the servicing for which is being assigned to the New
Servicer pursuant to this Section 4.13 shall have agreed (to the extent they
have a right to exercise a "terminating purchase" or clean-up call), on behalf
on themselves and their respective transferees, to provide New Servicer a first
right of exercise of any such terminating purchase or clean-up call under the
respective Servicing Agreements.
ARTICLE V
COVENANTS OF PURCHASER
Purchaser, on the one hand, and each Seller, on the other,
covenants and agrees with each other that, at all times from and after the date
hereof until the Closing (and after the Closing to the extent expressly
contemplated herein), Purchaser and each Seller will, and will cause each of its
Subsidiaries to, comply with all covenants and provisions of this Article V,
except to the extent Sellers, in the case of Purchaser, or Purchaser, in the
case of each Seller, may otherwise consent in writing.
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5.01 Regulatory and Other Approvals.
(a) Following entry of an Order of the U.S.
Bankruptcy Court approving the Bidding Procedures Motion, Purchaser will, as
promptly as practicable, (i) use commercially reasonable efforts to obtain all
consents, approvals or actions of, make all filings with and give all notices to
Governmental or Regulatory Authorities or any other Person required of Purchaser
to consummate the transactions contemplated hereby and by the Operative
Agreements, provided, however, that Purchaser shall be under no obligation to
provide any financial incentive to any Person for its grant of any consent or
approval required to consummate the transactions contemplated hereby and by the
Operative Agreements, (ii) provide such other information and communications to
such Governmental or Regulatory Authorities or other Persons as such
Governmental or Regulatory Authorities or other Persons may reasonably request
in connection therewith and (iii) provide reasonable cooperation to Sellers in
connection with the performance of their obligations under Sections 4.01 and
4.02. Purchaser will provide prompt notification to Sellers when any such
consent, approval, action, filing or notice referred to in clause (i) above is
obtained, taken, made or given, as applicable.
(b) In furtherance and not in limitation of the
covenants of Purchaser in Section 5.01(a) above, following entry of an Order of
the U.S. Bankruptcy Court approving the Bidding Procedures Motion, Purchaser
shall, and shall cause its Affiliates to, (i) make the filings required of
Purchaser or its Affiliates under the HSR Act within five (5) Business Days
after the issuance of such Order approving the Bidding Procedures Motion but in
no event later than December 16, 2003, (ii) comply at the earliest practicable
date with any request for additional information received by Purchaser or its
Affiliates from the FTC or the DOJ pursuant to the HSR Act, (iii) cooperate with
Sellers in connection with their filing under the HSR Act and in connection with
resolving any investigation or other inquiry concerning the transactions
contemplated by this Agreement commenced by either the FTC or the DOJ or state
attorneys general, and (iv) not knowingly take or cause to be taken any action,
including the acquisition of any business, voting securities (or other ownership
interests) or assets, which would reasonably be expected to materially delay or
prevent any consents, approvals and actions of any Governmental or Regulatory
Authority (including under the HSR Act) with respect to the transactions
contemplated by this Agreement.
(c) In furtherance and not in limitation of the
covenants of Purchaser as set forth in Sections 5.01(a) and (b) above, following
entry of an Order of the U.S. Bankruptcy Court approving the Bidding Procedures
Motion, Purchaser shall use commercially reasonable efforts to resolve such
objections, if any, as may be asserted with respect to the transactions
contemplated hereby made by any Governmental or Regulatory Authority. If any
action or proceeding in any domestic or foreign court or other tribunal is
instituted or threatened to be instituted by any Governmental or Regulatory
Authority challenging any of the transactions contemplated hereby as violative
of any Law, Purchaser shall use commercially reasonable efforts to take such
action as will (i) resolve any objections which any such Governmental or
Regulatory Authority may have to such transactions, (ii) avoid the entry of, or
effect the dissolution of, any injunction, temporary restraining order or other
order which has, or will have, the effect of preventing or interfering with the
consummation of any of the transactions contemplated hereby and (iii) obtain
approval of the transactions contemplated hereby by any Governmental or
Regulatory Authority, provided, however, that, notwithstanding the provisions
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of this Section 5.01 or any other provision in this Agreement (other than the
proviso to Section 6.05) to the contrary, in no event shall Purchaser or any of
its Subsidiaries or Affiliates be required to agree to, nor shall any Sellers
agree to (a) any prohibition of or limitation on the ownership or operation by
Purchaser or any of its Subsidiaries or Affiliates of any portion of their
respective businesses, product lines or assets, including those related to the
Transferred Assets, or any of the Transferred Assets, (b) divest, hold separate
or otherwise dispose of any portion of its or their respective businesses,
product lines or assets, including those related to the Transferred Assets, or
any Transferred Assets, or (c) any other limitation on Purchaser's or any of its
Subsidiaries' or Affiliates' ability to effectively control their respective
businesses or operations, including those related to the Transferred Assets, or
any of the Transferred Assets; provided, further, that Purchaser agrees to take,
and permit Sellers to take, the actions contemplated by the proviso to Section
6.05.
5.02 Bankruptcy Court Approvals.
(a) Purchaser shall assist and cooperate with
Sellers in their efforts to file the Plan and the Disclosure Statement with the
U.S. Bankruptcy Court and to obtain the entry of the Confirmation Order.
Purchaser shall cooperate with each of Sellers with respect to any description
of Purchaser in the Plan or the Disclosure Statement.
(b) Purchaser agrees to assist and cooperate
with Sellers to ensure that the Plan and the Disclosure Statement, as filed with
the U.S. Bankruptcy Court, contain "adequate information" (as that term is
defined in Section 1125 of the Bankruptcy Code). Purchaser shall from time to
time furnish to Sellers all such information about Purchaser required to be
disclosed in the Disclosure Statement. Purchaser shall promptly notify Sellers
if at any time before the Effective Date it becomes aware that the Disclosure
Statement contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
(c) If the Confirmation Order or any other
Orders of the U.S. Bankruptcy Court relating to this Agreement, the Disclosure
Statement, the solicitation of acceptance of the Plan or confirmation of the
Plan shall be appealed by any party (or a petition for certiorari or motion for
rehearing or reargument shall be filed with respect thereto), Purchaser agrees
to assist and cooperate with Sellers in Sellers' efforts, if any, to prosecute
such appeal, petition or motion or defend against such appeal, petition or
motion, with the objective of effecting the transactions contemplated by this
Agreement; provided, that Purchaser's obligations under this Section 5.02(c)
shall not require it to incur any legal costs or other out-of-pocket expenses,
or file any separate appeal, petition or motion.
5.03 Letters of Credit/Surety Bonds. Purchaser shall cause
the release of any collateral posted by Sellers under Sellers' DIP Facility and
Sellers' WFF Facility to secure the letters of credit and surety bonds listed on
Section 5.03 of Sellers' Disclosure Schedule, and any replacements thereof, and
any other surety bonds arising in the Ordinary Course of Business subsequent to
the date of this Agreement up to an aggregate amount of $200,000, which
collateral shall constitute Excluded Assets.
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5.04 Greenwich Capital Servicing Agreement. Purchaser
shall cause one of its Subsidiaries to enter into a mutually agreeable servicing
agreement with Greenwich Capital for the $6 million dollar loan portfolio
currently being serviced by OSHC at a fee not to exceed 1.25% annually.
5.05 Agreements Relating to the Auction. From the date on
which the U.S. Bankruptcy Court approves the Bidding Procedures Motion until the
date on which the Auction is concluded, Purchaser shall not, and shall cause its
Affiliates not to, (a) have any discussions or communication regarding the
Auction with any potential bidders in the Auction or their Representatives,
investors, lenders or sponsors, (b) disclose any information to any such Person
regarding Sellers or their Subsidiaries, the Business or the transactions
contemplated by this Agreement or (c) knowingly interfere with any efforts by
Sellers to obtain capital or financing for or otherwise to effectuate any
Alternative Transaction.
5.06 Confidentiality. Unless and until the transactions
contemplated herein have been consummated, Purchaser and its Affiliates shall
hold in confidence and shall cause all of their Representatives and agents
involved in this transaction (the "Purchaser Representatives") to hold in
confidence all information regarding Sellers furnished or made available by
Sellers (other than information in the public domain not as a result of a breach
of this Section 5.06, and other than information required to be disclosed by Law
or stock exchange rule in connection with the transactions contemplated hereby).
Purchaser shall be responsible for any breach of this Section 5.06 by any
Affiliate or Purchaser Representative. If such transactions are not consummated,
Purchaser shall return to Sellers all such documents received and shall destroy
all copies of such documents and all documents or materials containing
information derived from such documents and shall continue to hold all such
information in confidence.
5.07 Post-Closing Payments. Any payments to which Sellers
are entitled under this Agreement which are received by Purchaser following the
Effective Time shall by received by Purchaser solely in trust for the Estates on
behalf of Sellers and the full amount of such payments (without deduction or
set-off of any kind) shall be promptly remitted to the Estates on behalf of
Sellers.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligation of Purchaser hereunder to consummate the
transactions contemplated hereby is subject to the fulfillment, at or before the
Closing, of each of the following conditions (all or any of which may be waived
in whole or in part by Purchaser in its sole discretion):
6.01 Representations and Warranties. The representations
and warranties made by Sellers in this Agreement shall be true and correct in
all material respects (except for such representations and warranties that are
qualified by their terms by reference to materiality or Material Adverse Effect,
which representations and warranties as so qualified shall be true and correct
in all respects) on and as of the Closing Date as though made on and as of the
Closing Date.
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6.02 Performance. Sellers shall have performed and
complied with, in all material respects, the agreements, covenants and
obligations required by this Agreement to be so performed or complied with
by Sellers at or before the Closing.
6.03 Officer's Certificates. Each Seller shall have
delivered to Purchaser a certificate, dated the Closing Date and executed in the
name and on behalf of such Seller by a duly authorized officer of such Seller,
substantially in the form and to the effect of Exhibit C attached hereto, and a
certificate, dated the Closing Date and executed by the Secretary or any
Assistant Secretary of such Seller, substantially in the form and to the effect
of Exhibit D attached hereto.
6.04 Orders and Laws. There shall not be in effect on the
Closing Date any Order or Law restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by the
Plan, this Agreement or any of the Operative Agreements.
6.05 Regulatory Consents and Approvals. All consents,
approvals and actions of, filings with and notices to any Governmental or
Regulatory Authority or any other Person necessary to permit Purchaser and
Sellers to perform their obligations under this Agreement and the Operative
Agreements and to consummate the transactions contemplated hereby and thereby
shall have been duly obtained, made or given and shall be in full force and
effect, and all terminations or expirations of waiting periods imposed by any
Governmental or Regulatory Authority necessary for the consummation of the
transactions contemplated by this Agreement and the Operative Agreements,
including under the HSR Act, shall have occurred, in each case without
limitation, condition, or restriction that would affect the ability of Purchaser
and its Affiliates to own, control or operate any portion of the Business or the
Transferred Assets as owned, controlled, and operated by Sellers and their
Subsidiaries prior to the Closing (or any portion of Purchaser's and its
Affiliates' respective businesses, product lines or assets) or that would
require Purchaser or any of its Subsidiaries or Affiliates, or any Sellers, to
dispose of or hold separate any business, product lines or assets or otherwise
agree to any limitations on its ownership, control or operation thereof
(including any limitations referenced in the proviso to Section 5.01(c)), other
than any such limitation, condition, or restriction on the ownership, control or
operation of any Transferred Assets that relate to the retail segment of the
Business that would not have a material adverse effect on the retail segment of
the Business (so long as, notwithstanding any other provision of this Agreement
to the contrary, all proceeds from any transaction to accomplish the foregoing
are included in the Transferred Assets).
6.06 Plan and Confirmation Order. The Plan and the
Confirmation Order shall contain provisions that are satisfactory to Purchaser
in its reasonable judgment for the effectuation of the transactions contemplated
by this Agreement and the Operative Agreements in accordance with the terms
hereof and thereof. The Confirmation Order shall have been entered, at least ten
(10) days shall have passed since the entry of the Confirmation Order and the
Confirmation Order shall not be subject to any stay, appeal or motion for
rehearing, reconsideration or revocation and all conditions to the Effective
Date shall have been satisfied or duly waived in accordance with the applicable
provisions of the Plan.
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6.07 Deliveries. Sellers shall have delivered to Purchaser
the Xxxx of Sale and the other Assignment Instruments, and such powers of
attorney as Purchaser shall reasonably request.
6.08 Material Adverse Effect. Since the date of this
Agreement, there shall not have occurred any Material Adverse Effect on the
Condition of the Business, nor shall any event have occurred or circumstance
exist that could reasonably be expected to result in such a Material Adverse
Effect.
6.09 Pooling and Servicing Agreements. Sellers shall have
performed and complied with the agreements, covenants and obligations required
by Section 4.13 to be so performed or complied with by Sellers at or before the
Closing.
Notwithstanding the foregoing, Purchaser's obligations to
consummate the transactions contemplated hereby shall not be relieved by the
failure if any of the foregoing conditions if such failure is the result, direct
or indirect, of any breach by Purchaser of its obligations under this Agreement
with respect to the transactions contemplated hereby.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF SELLERS
The obligation of Sellers hereunder to consummate the
transactions contemplated hereby is subject to the fulfillment, at or before the
Closing, of each of the following conditions (all or any of which may be waived
in whole or in part by Sellers in their sole discretion):
7.01 Representations and Warranties. The representations
and warranties made by Purchaser in this Agreement shall be true and correct in
all material respects (except for such representations and warranties that are
qualified by their terms by reference to materiality or Material Adverse Effect,
which representations and warranties as so qualified shall be true and correct
in all respects) on and as of the Closing Date as though made on and as of the
Closing Date.
7.02 Performance. Purchaser shall have performed and
complied with, in all material respects, the agreements, covenants and
obligations required by this Agreement to be so performed or complied with by
Purchaser at or before the Closing.
7.03 Officer's Certificates. Purchaser shall have
delivered to Sellers a certificate, dated the Closing Date and executed in the
name and on behalf of Purchaser by a duly authorized officer of Purchaser,
substantially in the form and to the effect of Exhibit E attached hereto, and a
certificate, dated the Closing Date and executed by the Secretary or any
Assistant Secretary of Purchaser, substantially in the form and to the effect of
Exhibit F attached hereto.
7.04 Orders and Laws. There shall not be in effect on the
Closing Date any Order or Law restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by the
Plan, this Agreement or any of the Operative Agreements.
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7.05 Regulatory Consents and Approvals. All consents,
approvals and actions of, filings with and notices to any Governmental or
Regulatory Authority or any other Person necessary to permit Purchaser and
Sellers to perform their obligations under this Agreement and the Operative
Agreements and to consummate the transactions contemplated hereby and thereby
shall have been duly obtained, made or given and shall be in full force and
effect, and all terminations or expirations of waiting periods imposed by any
Governmental or Regulatory Authority necessary to permit Purchaser and Sellers
to perform their obligations under this Agreement and the Operative Agreements
and to consummate the transactions contemplated hereby and thereby, including
under the HSR Act, shall have occurred, in each case without limitation,
condition or restriction that would materially adversely affect any material
aspect of the transactions contemplated by this Agreement and the Operative
Agreements.
7.06 Confirmation Order. The Confirmation Order (in a form
providing for effectuation of all the transactions contemplated by this
Agreement and the Operative Agreements in accordance with the terms and
provisions hereof and thereof) shall have been entered, at least ten (10) days
shall have passed since the entry of the Confirmation Order and the Confirmation
Order shall not be subject to any stay, appeal or motion for rehearing,
reconsideration or revocation and all conditions to the Effective Date shall
have been satisfied or duly waived in accordance with the applicable provisions
of the Plan.
7.07 Letters of Credit/Surety Bonds. Purchaser shall have
obtained the release of any collateral posted by Sellers under Sellers' DIP
Facility or Sellers' WFF Facility, all in accordance with Section 5.03.
7.08 Deliveries. Purchaser shall have delivered to Sellers
the Assumption Agreement and the other Assumption Instruments.
Notwithstanding the foregoing, Sellers' obligations to
consummate the transactions contemplated hereby shall not be relieved by the
failure of any of the foregoing conditions if such failure is the result, direct
or indirect, of any breach by any Seller of its respective obligations under
this Agreement, the Plan or the Confirmation Order with respect to the
transactions contemplated hereby.
ARTICLE VIII
TERMINATION
8.01 Termination. This Agreement may be terminated, and
the transactions contemplated hereby may be abandoned, at any time prior to the
Closing Date:
(a) By mutual written agreement of Sellers and
Purchaser;
(b) By Sellers or Purchaser upon notification to
the non-terminating party by the terminating party:
(i) at any time after March 15, 2004
(the "Termination Date"), if the Closing shall not have been consummated on or
prior to such date and such failure is not caused by a breach of this Agreement
by the terminating party, provided, however, that in the circumstances described
in Section 8.01(b)(vii) the Termination Date shall
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be extended the same number of days as the extension pursuant to Section
8.01(b)(vii); provided, further, that in the event that the Closing shall not
have been consummated on or prior to such date and such failure is due solely to
the failure of the parties to obtain HSR Approval (as hereinafter defined), then
so long as Sellers are using their commercially reasonable efforts to obtain HSR
Approval, such date shall be extended for so long as Sellers are using their
commercially reasonable efforts to obtain HSR Approval, but in no event shall
such date be extended under this provision beyond May 31, 2004. For purposes of
this Agreement, "HSR Approval" means all consents and approvals under the HSR
Act required for the parties to perform their obligations under this Agreement
and the Operative Agreements and to consummate the transactions contemplated
hereby and thereby.
(ii) if at or prior to the Closing any
material condition set forth herein for the benefit of the terminating party
shall not have been timely met and cannot be met prior to the Termination Date
(as such date may be extended pursuant to Section 8.01(b)(i)) and has not been
waived by the terminating party; provided that the terminating party shall not
be responsible for the failure of such condition to be satisfied;
(iii) if there has been a material breach
of any representation, warranty, covenant, agreement or obligation (or any
breach of any representation or warranty that is qualified by its terms by
reference to materiality or Material Adverse Effect) on the part of the
non-terminating party set forth in this Agreement, which breach is not curable
or, if curable, has not been cured within ten (10) days following receipt by the
non-terminating party of notice of such breach from the terminating party;
(iv) if (A) any court of competent
jurisdiction (other than the U.S. Bankruptcy Court) or other competent
Governmental or Regulatory Authority (other than the U.S. Bankruptcy Court)
shall have issued an Order which has become final and non-appealable or (B) any
Law (other than the Bankruptcy Code) shall be in effect, in either case making
illegal or otherwise prohibiting the effectuation of any material part of the
transactions contemplated by this Agreement;
(v) if the U.S. Bankruptcy Court shall
have issued an Order which has become final and nonappealable restricting or
restraining in a material manner or enjoining or otherwise prohibiting or making
illegal the effectuation of any material part of the transactions contemplated
by this Agreement (including an Order denying confirmation of the Plan);
(vi) if the U.S. Bankruptcy Court has
not issued an Order approving the Bidding Procedures (in substantially the form
set forth on Exhibit H attached hereto) by December 15, 2003;
(vii) if the U.S. Bankruptcy Court has
not entered the Confirmation Order in the form required by Section 6.06
(approving the Plan in a form providing for the effectuation of all the
transactions contemplated by this Agreement in accordance with the terms and
provisions hereof), on or before March 1, 2004, provided, however, that if on
such date Sellers are using their commercially reasonable efforts to obtain
entry of the Confirmation Order in such form, then such date shall be extended
for so long as
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Sellers are using their commercially reasonable efforts to obtain entry of the
Confirmation Order in such form, but in no event shall such date be extended
beyond March 31, 2004;
(viii) if the U.S. Bankruptcy Court
confirms a plan of reorganization for Sellers that does not contemplate the
transactions contemplated by this Agreement; or
(ix) if the U.S. Bankruptcy Court
approves a Person other than Purchaser as the Successful Bidder or an
Alternative Transaction.
8.02 Effect of Termination.
(a) If this Agreement is terminated pursuant to
Section 8.01, this Agreement will forthwith become null and void, and there will
be no Liability on the part of any party hereto (or any of their respective
Representatives or Affiliates) except (i) the provisions with respect to
expenses in Section 10.05 and confidentiality in Sections 5.06 and 10.07 and the
provisions of this Article VIII will continue to apply following any such
termination, and (ii) nothing contained in this Agreement will relieve any party
from liability for any breach prior to such termination of its representations,
warranties, covenants and agreements set forth in this Agreement, except to the
extent a fee has been paid pursuant to Section 8.02(b) or (c), on the part of
Sellers, or 8.02(d) on the part of Purchaser, in which case such fee shall
constitute liquidated damages and shall be the sole remedy of the terminating
party for any such breach.
(b) If this Agreement is terminated pursuant to
Section 8.01(b)(i), Section 8.01(b)(ii), Section 8.01(b)(iii), Section
8.01(b)(iv) or Section 8.01(b)(vii) and Purchaser is not in breach of this
Agreement such that Sellers would have a right to terminate this Agreement
pursuant to Section 8.01(b)(iii), Sellers shall pay to Purchaser the Break-Up
Fee immediately upon termination by wire transfer of immediately available
United States funds to an account designated by Purchaser.
(c) If either party terminates this Agreement
pursuant to Section 8.01(b)(v), Section 8.01(b)(viii), or Section 8.01(b)(ix)
(but with respect to Section 8.01(b)(v), only if the Bankruptcy Court has
previously issued an Order approving the Bidding Procedures), and, in any such
case, Purchaser is not in breach of this Agreement such that Sellers would have
a right to terminate this Agreement pursuant to Section 8.01(b)(iii), Sellers
shall pay to Purchaser the Break-Up Fee immediately upon termination by wire
transfer of immediately available funds to an account designated by Purchaser.
(d) If this Agreement is terminated pursuant to
Section 8.01(b)(i), Section 8.01(b)(ii), 8.01(b)(iii) or 8.01(b)(vii) as a
result of a breach or default by Purchaser of its representations, warranties,
covenants, agreements or obligations or any failure, delay or inaction on the
part of Purchaser to perform its obligations hereunder and Sellers are not in
breach of this Agreement such that Purchaser would have the right to terminate
this Agreement pursuant to Section 8.01(b)(iii), Purchaser shall pay an amount
equal to the Break-Up Fee (the "Purchaser Fee") immediately upon termination by
wire transfer of immediately available United States funds to an account
designated by Sellers.
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(e) Notwithstanding anything to the contrary in
this Section 8.02, Purchaser shall not be entitled to the Break-Up Fee and
Sellers shall have no obligation to pay the Break-Up Fee, if this Agreement is
terminated solely pursuant to (x) Section 4.12, (y) Sections 8.01(b)(i) or
8.01(b)(ii) or 8.01(b)(vii) solely as a result of the failure of the condition
set forth in Section 6.05 relating to the HSR Act or (z) Section 8.01(b)(i) or
Section 8.01(b)(ii) solely as a result of the failure of the condition set forth
in Section 6.08.
(f) Notwithstanding anything to the contrary in
this Section 8.02, Sellers shall not be entitled to the Purchaser Fee and
Purchaser shall have no obligation to pay the Purchaser Fee, if this Agreement
is terminated solely pursuant to Sections 8.01(b)(i) or 8.01(b)(ii) or
8.01(b)(vii) solely as a result of the failure of the condition set forth in
Section 7.05 relating to the HSR Act.
ARTICLE IX
DEFINITIONS
9.01 Definitions.
(a) Defined Terms. As used in this Agreement,
the following defined terms have the meanings indicated below:
"Accounts Receivable" has the meaning ascribed to it in
Section 1.01(a)(xiv).
"Actions or Proceedings" means any action, suit, proceeding,
arbitration or investigation filed with or conducted by any Governmental or
Regulatory Authority.
"Additional Loan Amount" means an amount equal to ninety-three
percent (93%) of the unpaid principal balance of all chattel and mortgage loans
originated by Sellers after September 30, 2003 that satisfy the criteria set
forth on Exhibit K attached hereto, minus all net proceeds (including principal
but excluding interest) from all chattel and mortgage loans included on the
September 30, 2003 Financial Statements (exclusive of chattel and mortgage loans
sold to Vanderbilt on October 8, 2003 or thereafter).
"Adjusted P&I Advances" means the sum of those certain P&I
advances that constitute Transferred Assets included in the Schedule of P&I
Advances attached hereto as Exhibit L. A calculation of Adjusted P&I Advances as
of September 30, 2003 is included in Exhibit L.
"Adjusted Working Capital" means the sum of those certain
Transferred Assets included in the Schedule of Working Capital Assets attached
hereto as Exhibit J. A calculation of Adjusted Working Capital as of September
30, 2003 is included in Exhibit J.
"Affiliate" means any Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition,
"control" of a Person means the power, direct or indirect, to direct or cause
the direction of the management and policies of a Person whether by voting
power, contract or otherwise.
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"Agreement" means this Asset Purchase Agreement and the
Exhibits hereto, Sellers' Disclosure Schedule and the certificates delivered in
accordance with Sections 6.03 and 7.03, as the same shall be amended from time
to time.
"Alternative Transaction" means, other than the transactions
contemplated by this Agreement, (i) any merger, consolidation or other business
combination involving the Sellers or (ii) any acquisition or similar transaction
(including a tender or exchange offer) involving the purchase of (x) all or a
substantial part of the Transferred Assets, or (y) 50.1% or more of the
outstanding capital stock, partnership interests or membership interests, as
applicable, of Sellers.
"Asset Adjustment Amount" means the amount set forth on
Exhibit J as the "Asset Adjustment Amount."
"Assets and Properties" of any Person means all assets and
properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible (including contract rights),
wherever situated and by whomever possessed), including the goodwill related
thereto, operated, owned or leased by such Person.
"Assignment Instruments" has the meaning ascribed to it in
Section 1.05(c)(i).
"Assumed Liabilities" has the meaning ascribed to it in
Section 1.02(a).
"Assumed Rebate Liabilities" means any obligations of Seller
for dealer rebates on the Closing Date.
"Assumed Warranty Service Liabilities" means Sellers'
obligations under Sellers' standard manufacturer's warranty to repair or replace
defects in materials or workmanship in homes manufactured by Sellers and sold at
wholesale or retail on or after November 15, 2002 and prior to the Closing Date.
"Assumption Agreement" has the meaning ascribed to it in
Section 1.05(c)(ii).
"Assumption Instruments" has the meaning ascribed to it in
Section 1.05(c)(ii).
"Auction" has the meaning ascribed to it in the Bidding
Procedures.
"Bankruptcy Code" has the meaning ascribed to it in the
recitals to this Agreement.
"Benefit Plans" means any plan (as defined below) established
by any Seller, or any predecessor or Affiliate thereof, existing at the Closing
Date or at any time within the three (3) year period prior thereto, to which any
Seller contributes or has contributed on behalf of any Employee, former employee
or director, or under which any Employee, former employee or director of any
Seller or any beneficiary thereof is covered, is eligible for coverage or has
benefit rights (for purposes of this definition, the term "plan" means any
bonus, incentive compensation, deferred compensation, pension, profit sharing,
retirement, stock purchase, stock option, stock ownership, stock appreciation
rights, phantom stock, leave of absence, layoff, vacation, day or dependent
care, legal services, cafeteria, life, health, dental, tuition
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reimbursement, accident, disability, workmen's compensation or other insurance,
severance, separation or other employee benefit plan, practice, policy or
arrangement of any kind, whether written or oral, including any "employee
benefit plan" within the meaning of Section 3(3) of ERISA).
"Bidding Procedures" has the meaning ascribed to it in Section
4.03.
"Bidding Procedures Motion" has the meaning ascribed to it in
Section 4.03.
"Xxxx of Sale" has the meaning ascribed to it in Section
1.05(c)(i).
"Books and Records" means books of account, minute books,
stock record books, and other similar business records.
"Break-Up Fee" means an amount equal to Eleven Million Dollars
($11,000,000) to be paid by Sellers to Purchaser under the circumstances set
forth in Section 8.02.
"Business" has the meaning ascribed to it in the recitals to
this Agreement.
"Business Books and Records" has the meaning ascribed to it in
Section 1.01(a)(xii).
"Business Contracts" has the meaning ascribed to it in Section
1.01(a)(vii).
"Business Day" means a day other than Saturday, Sunday or any
other day on which banking institutions in New York, New York are required or
authorized to close by law or executive order.
"Business Licenses" has the meaning ascribed to it in Section
1.01(a)(x).
"Charter Documents" means such Person's certificate or
articles of incorporation, by-laws, partnership agreement, limited partnership
agreement, limited liability company agreement, trust agreement or declaration
and other comparable constituent, charter or organizational documents, as
applicable in such Person's jurisdiction of formation.
"Claims" has the meaning ascribed to it in the Plan.
"Closing" has the meaning ascribed to it in Section 1.05(a).
"Closing Date" has the meaning ascribed to it in Section
1.05(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Official Committee of Unsecured
Creditors in the Reorganization Cases, as appointed by the U.S. Trustee and
reconstituted from time to time.
"Computer/Telecommunications Contracts" has the meaning
ascribed to it in Section 1.01(a)(vii).
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"Condition of the Business" means the business, financial
condition, results of operations and Assets and Properties of the Business,
taken as a whole.
"Confidentiality Agreement" means the agreement entered into
between Sellers and Purchaser, dated October 29, 2002, as amended by an
amendment thereto dated as of August 5, 2003, and as further amended by an
amendment thereto dated as of November 24, 2003, regarding certain confidential
information to be provided to Purchaser by or on behalf of Sellers.
"Confirmation Date" has the meaning ascribed to it in the
recitals to this Agreement.
"Confirmation Order" has the meaning ascribed to it in the
recitals to this Agreement.
"Contract" means any agreement, lease, license, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract.
"Contract Escrow Amounts" has the meaning ascribed to it in
Section 1.01(a)(xvi).
"Contract Escrow Offset Amount" means the excess of Sellers'
accrued liability for Contract Escrow Amounts as of the Closing Date over the
amount of Contract Escrow Amounts held in trust as of the Closing Date actually
transferred to Purchaser (or its designated Affiliate(s)) (or to the control of
Purchaser (or its designated Affiliate(s)) for disbursement) at Closing.
"Conveyance Taxes" has the meaning ascribed to it in Section
4.08(a).
"Cure Costs" means the costs of curing any payment default
under any Business Contract, Personal Property Lease, Real Property Lease or
Business License in existence at the Effective Time.
"Designated REMIC Class R Certificates" means the REMIC Class
R Certificates for REMIC 1994-1, REMIC 1994-A, REMIC 1995-A and 1996
Resecuritization REMIC.
"Disclosure Statement" has the meaning ascribed to it in the
recitals to this Agreement.
"DOJ" has the meaning ascribed to it in Section 4.02.
"Effective Date" means the date the Plan becomes effective.
"Effective Time" has the meaning ascribed to it in Section
1.05(a).
"Eligible Employees" means Employees who satisfy Purchaser's
and its Affiliates' standard employee hiring criteria, including satisfaction of
background checks and physicals and passage of drug tests.
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"Employee" means each employee or officer of any Seller
engaged in the conduct of the Business.
"Employee Retained Liabilities" has the meaning ascribed to it
in Section 4.11.
"Environmental Claims" means any complaint, notice, directive,
order, claim, litigation, investigation, judicial or administrative proceeding,
judgment or other communication from any Governmental or Regulatory Authority
involving violations or Environmental Laws or Releases of Hazardous Substances.
"Environmental Laws" means all Laws relating to the protection
of the environment, or to any emission, discharge, generation, processing,
storage, holding, abatement, existence, Release, threatened Release or
transportation of any Hazardous Substances, including all Laws pertaining to
reporting, licensing, permitting, investigation or remediation of emissions,
discharges, Releases or threatened Releases of Hazardous Substances into the
air, surface water, groundwater or land, or relating to the manufacture,
processing, distribution, use, sale, treatment, receipt, storage, disposal,
transport or handling of Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Agent" has the meaning ascribed to it in Section
1.05(b).
"Escrow Agreement" has the meaning ascribed to it in Section
1.05(b).
"Escrow Amount" means an amount equal to (i) the Estimated
Working Capital Adjustment Amount, (ii) plus or minus, as appropriate, the
Estimated P&I Advances Adjustment Amount, (iii) plus the Estimated Contract
Escrow Offset Amount, plus (iv) $12 million.
"Estates" has the meaning ascribed to it in the recitals to of
this Agreement.
"Estimated Contract Escrow Offset Amount" means a good faith
estimate of the amount of the Contract Escrow Offset Amount prepared by the
Chief Financial Officer of OHC which shall be delivered to Purchaser at least
two (2) days prior to the Closing.
"Estimated P&I Advances Adjustment Amount" means a good faith
estimate of the amount of the P&I Advances Adjustment Amount prepared by the
Chief Financial Officer of OHC which shall be delivered to Purchaser at least
two (2) days prior to the Closing.
"Estimated Purchase Price" has the meaning ascribed to it in
Section 1.04(a).
"Estimated Working Capital Adjustment Amount" means a good
faith estimate of the amount of the Working Capital Adjustment Amount prepared
by the Chief Financial Officer of OHC which shall be delivered to Purchaser at
least two (2) days prior to the Closing.
"Evaluation Material" has the meaning ascribed to in the
Confidentiality Agreement.
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"Excluded Assets" has the meaning ascribed to it in Section
1.01(b).
"Excluded Liabilities" has the meaning ascribed to it in
Section 1.02(c).
"Executive Employees" shall mean Xxxxx Xxxxxxxx, Xxxxxx Xxxxx
and Xxxx Xxxx.
"FTC" has the meaning ascribed to it in Section 4.02.
"GAAP" means United States generally accepted accounting
principles, consistently applied throughout the specified period and in the
immediately prior comparable period.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, board, bureau, department,
legislature, official or other instrumentality of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision.
"Hazardous Substances" means any substance or material that:
(i) is or contains asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum or petroleum-derived substances or wastes, radon gas or
related materials, or (ii) requires investigation, removal or remediation under
any Environmental Law, or is defined, listed or identified as a "hazardous
waster," "hazardous substance," "toxic substance" or words of similar import
thereunder.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder.
"Indebtedness" of any Person means all obligations of such
Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures or
similar instruments, (iii) for the deferred purchase price of goods or services
(other than trade payables or accruals incurred in the Ordinary Course of
Business), (iv) under capital leases and (v) in the nature of guarantees of the
obligations described in clauses (i) through (iv) above of any other Person.
"Independent Accountants" has the meaning ascribed to it in
Section 1.08(a).
"Initial Purchase Price" has the meaning ascribed to it in
Section 1.04(a).
"Intangible Personal Property" has the meaning ascribed to it
in Section 1.01(a)(ix).
"Intellectual Property" means all owned and licensed, to the
extent transferable under applicable law, patents and patent rights, trademarks
and trademark rights (including, without limitation, "Crest Homes," "Freedom
Homes," "Golden West Homes," "Xxxxxx Homes," "Xxxxxxxx," and "Oakwood Homes"),
trade names and trade name rights, service marks and service xxxx rights,
service names and service name rights, brand names, inventions, copyrights
(including software) and copyright rights, processes, formulae, trade dress,
business and product names, logos, slogans, trade secrets, industrial models,
designs, methodologies, computer
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programs (including all source codes) and related documentation, technical
information, manufacturing, engineering and technical drawings, know-how and all
pending applications for and registrations of patents, trademarks, service marks
and copyrights.
"Inventory" has the meaning ascribed to it in Section
1.01(a)(iv).
"IRS" means the United States Internal Revenue Service.
"Knowledge of Purchaser" means the actual knowledge of any
executive officer of Purchaser.
"Knowledge of Sellers" means the actual knowledge of any of
the Executive Employees.
"Laws" means all laws, statutes, rules, regulations, codes,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental or Regulatory Authority.
"Liabilities" means all Indebtedness, obligations, judgments,
damages, charges, costs and other liabilities of a Person (whether absolute,
accrued, contingent, fixed or otherwise, or whether due or to become due).
"Licenses" means all licenses, permits, certificates of
authority, authorizations, approvals, registrations, franchises and similar
consents granted or issued by any Governmental or Regulatory Authority.
"Lien" means any mortgage, pledge, assessment, security
interest, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing.
"Location Manager" has the meaning ascribed to it in Section
2.17(c).
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect on the financial condition, business, Liabilities,
properties, assets or results of operations of such Person and its Subsidiaries,
taken as a whole; provided, however, that (i) any changes in general United
States or global economic conditions, (ii) any changes in general economic
conditions in industries in which the Person operates which changes do not
affect such Person and its Subsidiaries disproportionately relative to other
entities operating in such industries, (iii) any decline in the market price of
the common stock or other equity interests of such Person or its Subsidiaries,
(iv) commencement and conduct of the Reorganization Cases as referenced in and
contemplated by this Agreement, (v) defaults under Licenses, real property
leases and personal property leases (including the Business Licenses, the Real
Property Leases and the Personal Property Leases) or Contracts (including the
Business Contracts) occasioned by the filing of the Reorganization Cases, (vi)
covenant defaults of Sellers or their Affiliates under pre-petition financing
arrangements, (vii) any failure of customers to continue, renew or extend
existing contracts with Sellers or their Affiliates, and (viii) any consequences
to the Business resulting from the announcement of the sale transaction
contemplated herein and the process to
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obtain approval of such sale transaction shall not, individually or in the
aggregate, be deemed to constitute a Material Adverse Effect.
"New Servicer" has the meaning ascribed to it in Section 4.13.
"Non-Debtor Sellers" means any Sellers that are not debtors in
the Reorganization Cases.
"OAC" has the meaning ascribed to it in Section 4.13.
"OHC" has the meaning ascribed to it in the preamble to this
Agreement.
"OHC Financial Statements" has the meaning ascribed to it in
Section 2.10.
"OSHC" has the meaning ascribed to it in Section 4.13.
"Operative Agreements" means, collectively, the Escrow
Agreement, the Xxxx of Sale and the other Assignment Instruments, the Assumption
Agreement and the other Assumption Instruments and any support or other
agreements to be entered into in connection with the transaction.
"Option" with respect to any Person means any security, right,
subscription, warrant, option, "phantom" stock right, swap, hedge, derivative or
other Contract that gives the right to(i) purchase or otherwise receive or be
issued any shares of capital stock of, or any partnership interest, membership
interest, ownership interest or other equity interest in, such Person or any
security of any kind convertible into or exchangeable or exercisable for any
shares of capital stock of, or any partnership interest, membership interest,
ownership interest or other equity interest in, such Person or (ii) receive or
exercise any benefits or rights similar to any rights enjoyed by or accruing to
the holder of shares of capital stock of, or any partnership interest,
membership interest, ownership interest or other equity interest in, such
Person, including any rights to participate in the equity or income of such
Person or to participate in or direct the election of any directors, partners,
managers or officers of such Person or the manner in which any shares of capital
stock of such Person are voted or that reduces the risk of ownership of any
security of any such Person or, in the event such Person is a general or limited
partnership, to act as, or enjoy the rights of a partner of such Person or, in
the event such Person is a limited liability company, to act as, or enjoy the
rights of a member of such Person.
"Order" means any writ, judgment, decree, injunction or
similar order of any Governmental or Regulatory Authority (in each such case
whether preliminary or final).
"Ordinary Course of Business" means the ordinary course of
business of Sellers and their Subsidiaries consistent with their past custom and
practice (including with respect to quantity and frequency); provided that (i)
any and all actions taken by Sellers and their Subsidiaries as contemplated by
this Agreement, including commencement of the Reorganization Cases, and (ii) any
and all actions taken by Sellers pursuant to authorization of the U.S.
Bankruptcy Court, shall not be deemed for any purposes of this Agreement to
constitute actions not in the Ordinary Course of Business.
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"Other Assets" has the meaning ascribed to it in Section
1.01(a)(xix).
"P&I Advances Adjustment Amount" means (a) the amount, if any,
by which the P&I Advances Target exceeds the Adjusted P&I Advances as of the
Closing Date or (b) the amount, if any, by which the Adjusted P&I Advances as of
the Closing Date exceeds the P&I Advances Target.
"P&I Advances Target" means an amount equal to the Adjusted
P&I Advances as of September 30, 2003 reflected on Exhibit L.
"Permitted Lien" means (i) any Lien for Taxes not yet due or
delinquent or being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP, (ii) any
statutory Lien arising in the Ordinary Course of Business or by operation of Law
with respect to a Liability that is not yet due or delinquent, (iii) any Liens
arising under capital leases and operating leases for the purchase of plant or
equipment that (x) have been assumed prior to the date of this Agreement
pursuant to an Order of the U.S. Bankruptcy Court or (y) are assumed by Sellers
pursuant to Section 1.09, (iv) any Liens that constitute Assumed Liabilities
pursuant to the terms of this Agreement; or (v) easements, leases, reservations,
licenses or other rights of others in, or minor defects and irregularities in
title to, property or assets of Sellers or their Subsidiaries, provided that
such easements, leases, reservations, licenses, rights, defects or
irregularities do not materially detract from the value of or impair the use of
such property or assets for the purposes for which they are held;
"Person" means any natural person, corporation, limited
liability company, general partnership, limited partnership, proprietorship,
other business organization, trust, union, association or Governmental or
Regulatory Authority.
"Personal Property Leases" has the meaning ascribed to it in
Section 1.01(a)(vi).
"Petition Date" has the meaning ascribed to it in the recitals
to this Agreement.
"Plan" means the plan of reorganization described in the
recitals to this Agreement.
"Preference Claims" means all claims of Sellers arising under
Section 547 of the Bankruptcy Code.
"Prepaid Expenses" has the meaning ascribed to it in Section
1.01(a)(viii).
"Purchaser" has the meaning ascribed to it in the preamble to
this Agreement.
"Purchaser Fee" has the meaning ascribed to it in Section
8.02(d).
"Purchaser Representative" has the meaning ascribed to it in
Section 5.06.
"Real Property" has the meaning ascribed to it in Section
1.01(a)(ii).
"Real Property Leases" has the meaning ascribed to it in
Section 1.01(a)(iii).
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"Regulation" means the income tax regulations, including
temporary regulations, promulgated under the Code, as such regulations are
amended from time to time.
"Release" means any releasing, disposing, discharging,
injecting, spilling, leaking, leaching, pumping, dumping, emitting, escaping,
emptying, seeping, dispersal, migration, transporting, placing and the like,
including the moving of any materials through, into or upon, any land, soil,
surface water, groundwater or air, or otherwise entering into the environment.
"Reorganization Cases" has the meaning ascribed to it in the
recitals to this Agreement.
"Representatives" with respect to any Person means such Person
and its officers, employees, counsel, accountants, financial advisors,
consultants, agents and other representatives.
"Schedule of Closing Date P&I Advances" means the schedule
prepared by Purchaser and delivered to Sellers with the Total Purchase Price
Calculation that sets forth, as of the Closing Date, the sum of those certain
P&I advances that constitute Transferred Assets included in the Schedule of P&I
Advances attached hereto as Exhibit L, which schedule shall be prepared on a
basis consistent with the Schedule of P&I Advances attached hereto as Exhibit L.
"Schedule of Closing Date Working Capital Assets" means the
schedule prepared by Purchaser and delivered to Sellers with the Total Purchase
Price Calculation that sets forth, as of the Closing Date, the sum of those
certain Transferred Assets included in the Schedule of Working Capital Assets
attached hereto as Exhibit J, which schedule shall be prepared on a basis
consistent with the Schedule of Working Capital Assets attached hereto as
Exhibit J.
"Sellers" has the meaning ascribed to it in the preamble to
this Agreement.
"Sellers' Adjustment Request" has the meaning ascribed to it
in Section 1.08(a).
"Sellers' DIP Facility" means that certain
Debtor-In-Possession Financing and Security Agreement dated as of January 28,
2003 among OHC and certain of its Affiliates named therein and the various
financial institutions named as lenders therein, as amended from time to time,
and any replacement facility or refinancing thereof.
"Sellers' Disclosure Schedule" has the meaning ascribed to it
in the preamble to Article II.
"Sellers' WFF Facility" means the Cash Collateral Agreement
dated March 24, 2003 among OHC and certain of its Subsidiaries and Xxxxx Fargo
Foothill pursuant to which Xxxxx Fargo Foothill agreed to continue to provide
letters of credit which are secured by cash deposits of OHC and its Subsidiaries
equal to the face amount of such letters of credit plus 5%, as amended from time
to time, and any replacement facility or refinancing thereof.
"Servicing Agreements" has the meaning ascribed to it in
Section 4.13.
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"Subsidiary" with respect to an entity means any Person in
which such entity, directly or indirectly through Subsidiaries or otherwise,
beneficially owns more than fifty percent (50%) of either the equity interests
in, or the voting control of, such Person.
"Suburban Homes Assets" means any and all Assets and
Properties of Suburban Homes Sales, Inc. used in or relating to the Business
that, prior to any designation pursuant to Section 1.01(c), constitute
Transferred Assets.
"Suburban Homes Liabilities" means the Assumed Liabilities,
prior to any designation pursuant to Section 1.01(c), relating to Suburban Homes
Sales, Inc. set forth in Item II of Section 1.02 of Sellers' Disclosure
Schedules.
"Successful Bidder" has the meaning ascribed to it in the
Bidding Procedures.
"Tangible Personal Property" has the meaning ascribed to it in
Section 1.01(a)(v).
"Tax Returns" means all returns, reports and forms required to
be filed with a Governmental or Regulatory Authority with respect to Taxes.
"Taxes" means any and all taxes, fees, levies, duties,
tariffs, import and other similar charges, imposed by any taxing authority,
together with any related interest, penalties, or other additions to tax, or
additional amounts imposed by any taxing authority, and without limiting the
generality of the foregoing, shall include net income, alternative or add-on
minimum tax, gross income, gross receipts, sales, use, ad valorem, value added,
franchise, profits, license, transfer, recording, escheat, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property, windfall
profit, environmental, custom duty, or other tax, governmental fee or other like
assessment or charge of any kind whatsoever.
"Termination Date" has the meaning ascribed to it in Section
8.01(b)(i).
"Total Purchase Price" has the meaning ascribed to it in
Section 1.04(a).
"Total Purchase Price Calculation" means a calculation
prepared by Purchaser and delivered to Sellers with the Schedule of Closing Date
Working Capital Assets, the Schedule of Closing Date P&I Advances and the
Contract Escrow Offset Amount that computes the Total Purchase Price.
"Transferred Assets" has the meaning ascribed to it in Section
1.01(a).
"Transferred Security Deposits" has the meaning ascribed to it
in Section 1.01(a)(xvii).
"U.S. Bankruptcy Court" has the meaning ascribed to it in the
recitals to this Agreement.
"U.S. Trustee" means the Office of the United States Trustee
for the District of Delaware.
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"Vanderbilt" has the meaning ascribed to it in Section 4.13.
"Vehicles" has the meaning ascribed to it in Section
1.01(a)(xi).
"WARN Act" means the Worker Adjustment and Retraining
Notification Act, as amended.
"Warranty Service Liability Amount" means Eleven Million Five
Hundred Thousand Dollars ($11,500,000).
"Working Capital Adjustment Amount" means the amount, if any,
by which the Working Capital Target exceeds the Adjusted Working Capital as of
the Closing Date.
"Working Capital Target" means an amount equal to the Adjusted
Working Capital as of September 30, 2003 reflected on Exhibit J.
(b) Construction of Certain Terms and Phrases.
Unless the context of this Agreement otherwise requires,(i) words of any gender
include each other gender, (ii) words using the singular or plural number also
include the plural or singular number, respectively; (iii) the terms "hereof,"
"herein," "hereby" and derivative or similar words refer to this entire
Agreement; (iv) the terms "Article" or "Section" refer to the specified Article
or Section of this Agreement; and (v) the terms "include," "includes," and
"including" shall be deemed to be followed by the words "without limitation."
Whenever this Agreement refers to a number of days, such number shall refer to
calendar days unless Business Days are specified. All accounting terms used
herein and not expressly defined herein shall have the meanings given to them
under GAAP.
ARTICLE X
MISCELLANEOUS
10.01 Non-Survival of Representations and Warranties. The
representations and warranties contained in this Agreement or in any instrument
delivered pursuant to this Agreement shall not survive the Closing and
thereafter there shall be no Liability in respect thereof, whether such
Liability has accrued prior to the Effective Time or after the Effective Time,
on the part of any party hereto or its directors, partners, managers, members,
agents or Representatives or Affiliates. The covenants and agreements of the
parties hereto contained in this Agreement shall only survive the Closing as and
to the extent that such covenants and agreements are expressly to be performed,
in whole or in part, following the Closing. Whenever "Seller" or "Sellers" is
used in this Agreement with reference to a period after the Closing, the term
means those Sellers that are in existence and the successor or successors to
Sellers designated under the Plan, if any.
10.02 Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to have been duly
given only if delivered personally, by facsimile transmission, mailed (first
class postage prepaid) or sent by internationally recognized courier, to the
parties at the following addresses or facsimile numbers:
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If to any Seller, to:
Oakwood Homes Corporation
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxxxxx
with a copy to:
Morris, Nichols, Arsht & Xxxxxxx
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
and
Xxxxxxx Xxxxxx & Xxxxxx, P.A.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: C. Xxxxxxx Xxxxxxx, Xx., Esq.
and to the Committee, in care of:
King & Spalding
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxx, Esq.
If to Purchaser, to:
Xxxxxxx Homes, Inc.
000 Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxxxx
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with a copy to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxxx, Esq.
All such notices, requests and other communications will (i)
if delivered personally to the address as provided in this Section 10.02, be
deemed given upon delivery, (ii) if delivered by facsimile transmission to the
facsimile number as provided in this Section 10.02, be deemed given upon
electronic confirmation of receipt, (iii) if delivered by mail in the manner
described above to the address as provided in this Section 10.02, be deemed
given upon receipt and (iv) if delivered by internationally recognized courier
to the address as provided in this Section 10.02, be deemed given upon delivery
as indicated in the records of such courier (in each case regardless of whether
such notice, request or other communication is received by any other Person to
whom a copy of such notice, request or other communication is to be delivered
pursuant to this Section 10.02). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
10.03 Bulk Sales Act. To the extent applicable, the parties
hereby waive compliance with the bulk sales act or comparable statutory
provisions of each applicable jurisdiction.
10.04 Entire Agreement. This Agreement, the Operative
Agreements and the Confidentiality Agreement supersede all prior discussions and
agreements prior to the date hereof between the parties with respect to the
subject matter hereof and thereof, and contain the sole and entire agreement
between the parties hereto with respect to the subject matter hereof and
thereof.
10.05 Expenses. Except as otherwise expressly provided in
this Agreement, whether or not the transactions contemplated hereby are
consummated, each party will pay its own costs and expenses incurred in
connection with the negotiation, execution and closing of this Agreement and the
Operative Agreements and the transactions contemplated hereby and thereby.
10.06 Public Announcements. At all times at or before the
Closing, the parties hereto will not issue or make any reports, statements or
releases to the public with respect to this Agreement or the transactions
contemplated hereby without the prior written consent of the other, which
consent shall not be unreasonably withheld, except to the extent that such
disclosure is, in the opinion of counsel, required by Law or by stock exchange
rule, provided that any such required disclosure shall only be made, to the
extent consistent with Law, after consultation with the other parties hereto;
provided, however, further that this Section 10.06 shall not apply to any
reports, statements, pleadings or releases by Sellers to the public as required
or reasonably appropriate in connection with the Reorganization Cases, including
in connection with approval of the Disclosure Statement or confirmation of the
Plan.
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10.07 Confidentiality. Any information or material obtained
by Purchaser or any of its Representatives pursuant to this Agreement (including
Sellers' Disclosure Schedule) that constitutes "Evaluation Material" (as defined
in the Confidentiality Agreement) shall be governed by the terms of the
Confidentiality Agreement. Any information or material obtained by Sellers or
their Representatives pursuant to this Agreement regarding Purchaser or any of
its Affiliates shall be treated as confidential by Sellers and their
Representatives in the same manner as Evaluation Material under the
Confidentiality Agreement; provided, however, that Sellers shall have the right
to file Sellers' Disclosure Schedule with the U.S. Bankruptcy Court under seal.
In the event of any conflict between the provisions of this Agreement and the
Confidentiality Agreement, the provisions of this Agreement shall prevail.
Notwithstanding anything to the contrary herein or elsewhere contained, and
without limitation of any kind, Sellers and Purchaser and their respective
Representatives may disclose to any and all Persons (a) the U.S. tax treatment
and U.S. tax structure (as defined in Regs. xx.xx. 1.6011-4(c)(8) and (9)) of
this Agreement and the transactions contemplated hereby and (b) all materials of
any kind (including opinions and tax analyses) that are provided to any such
party relating to such U.S. tax treatment and U.S. tax structure.
10.08 Waiver. Any term or condition of this Agreement may
be waived at any time by the party that is entitled to the benefit thereof, but
no such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by Law or otherwise afforded, will be cumulative
and not alternative.
10.09 Amendment. This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by or on
behalf of each party hereto.
10.10 No Third Party Beneficiary. The terms and provisions
of this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, including post-confirmation
trusts, disbursing agents or other agents or professionals of the Estates, and
it is not the intention of the parties to confer third-party beneficiary rights
upon any other Person.
10.11 No Assignment; Binding Effect. Neither this Agreement
nor any right, interest or obligation hereunder may be assigned by any party
hereto without the prior written consent of the other parties hereto and any
attempt to do so will be void, provided, however, that Purchaser may assign,
transfer and/or delegate all or any portion of its rights, duties and
obligations under this Agreement (including any Assumed Liabilities and rights
with respect to any Transferred Assets, but not including its obligation to pay
or cause to be paid the Total Purchase Price and any amount required to be paid
by it pursuant to Section 8.02(d)) to any Affiliate(s) of Purchaser. In the
event of any such assignment, transfer or delegation to one or more Affiliates
of Purchaser, and notwithstanding any provision to the contrary herein (but
subject to the further provisions of this Section 10.11), (a) Purchaser shall
have no liability or obligation (whether arising by contract, this Agreement,
tort or otherwise) for any such assigned, transferred or delegated rights,
duties and obligations, and (b) each Seller agrees to cooperate with Purchaser
and such Affiliate(s) in documenting, executing and effecting the valid
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assignment, transfer and/or delegation of those rights, duties or obligations
from the respective Seller directly to such Affiliate(s); provided, however,
that notwithstanding the foregoing, Purchaser shall remain liable to Sellers
under this Agreement for any such assigned, transferred or delegated duties or
obligations to the extent such duties or obligations relate to Assumed
Liabilities under (1) Section 1.02(a)(ii), (2) Section 1.02(a)(iii), (3) Section
1.02(a)(iv) relating solely to retail customer purchase contracts or (4)
Business Contracts listed under "Vendor Contracts" on Section 1.01(a)(vii) of
Sellers' Disclosure Schedule, unless, with respect to any such assigned,
transferred or delegated duties or obligations: (x) Sellers shall have given
their prior written consent (which consent shall not be unreasonably withheld)
to the assignment, transfer or delegation; or (y) Purchaser shall have (i) put
funds into escrow pursuant to an escrow agreement reasonably satisfactory to
Sellers or (ii) obtained a surety bond or letter of credit in favor of Sellers,
in each case in an amount mutually agreed by Sellers and Purchaser to be
sufficient to pay in full any such assigned, transferred or delegated duties and
obligations. Subject to any required approval of the U.S. Bankruptcy Court, this
Agreement is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns, including
post-confirmation trusts, disbursing agents or other agents or professionals of
the Estates.
10.12 Headings. The headings used in this Agreement have
been inserted for convenience of reference only and do not define or limit the
provisions hereof.
10.13 Retention of U.S. Bankruptcy Court Jurisdiction.
Subject to the proviso of the immediately succeeding sentence, and except as
otherwise provided herein, the U.S. Bankruptcy Court shall retain jurisdiction
of the proceedings referred to in the Plan, including for purposes of
determining any and all controversies and disputes arising under or in
connection with, or for purposes of interpreting the provisions of, this
Agreement and the Operative Agreement and including to the full extent set forth
in the Plan and the Confirmation Order. Without limiting the generality of the
foregoing, such jurisdiction shall include any determination as to the
fulfillment or non-fulfillment of any condition to consummation of the
transactions contemplated hereby set forth in Articles VI and VII and any such
determination shall be final and binding on the parties and not subject to any
appeal, the right to which is hereby waived by the parties; provided, however,
that nothing contained herein shall limit the rights of the parties to appeal
any determination of the U.S. Bankruptcy Court relating to the amount of any
monetary damages, fees, costs and expenses awarded with respect to any such
determination as aforesaid.
10.14 Governing Law. This Agreement shall be governed by
and construed in accordance with the Laws of the State of Delaware applicable to
a contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof, and, to the extent applicable, the federal
Laws of the United States of America.
10.15 Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under any present or
future Law, and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (a) such
provision will be fully severable, (b) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, and (c) the
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remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom.
10.16 Counterparts. This Agreement may be executed in one
or more counterparts and by facsimile signatures, each of which shall be deemed
to be an original and all of which together shall constitute one and the same
agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by a duly authorized officer of each party hereto as of the date first
above written.
SELLERS:
OAKWOOD HOMES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
OAKWOOD ACCEPTANCE CORPORATION, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
HBOS MANUFACTURING, LP
By: Oakwood Mobile Homes, Inc.,
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
OAKWOOD MOBILE HOMES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
FSI FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
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HOME SERVICE CONTRACT, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
TRI-STATE INSURANCE AGENCY, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
NEW DIMENSION HOMES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
PREFERRED HOUSING SERVICES, LP
By: Oakwood Mobile Homes, Inc.,
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
OAKWOOD SHARED SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Vice President
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GOLDEN WEST LEASING, LLC
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
Assistant Secretary
SUBURBAN HOME SALES, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx
Vice President
OAKWOOD FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD INVESTMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD TRANCHE A SERVICING ADVANCE
RECEIVABLES COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD ADVANCE RECEIVABLES COMPANY II, LLC
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
Assistant Secretary
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OMI NOTE TRUST 2003-A
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Financial Services Officer
It is expressly understood and agreed by the parties that (a) this Agreement is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Owner Trustee of OMI Note Trust 2003-A in the exercise
of the powers and authority conferred and vested in it, pursuant to the Trust
Agreement dated as of January 23, 2003 between Oak Leaf Holdings, LLC and
Wilmington Trust Company, (b) each of the representations, undertakings and
agreements herein made on the part of OMI Note Trust 2003-A is made and intended
not as personal representations undertakings and agreements by Wilmington Trust
Company but is made and intended for the purpose of binding only OMI Note Trust
2003-A, (c) nothing herein contained shall be construed as creating any
liability of Wilmington Trust Company, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any being expressly waived by the parties hereto and by any person claiming
by through or under the parties hereto, and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of indebtedness or
expenses of OMI Note Trust 2003-A or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by OMI Note
Trust 2003-A under this Agreement or any other related documents.
PURCHASER:
XXXXXXX HOMES, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
and President
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EXHIBIT A
GENERAL ASSIGNMENT AND XXXX OF SALE
KNOW ALL PERSONS BY THESE PRESENTS, that XXXXXXX HOMES, INC.,
a Delaware corporation ("Purchaser"), has entered into that certain Asset
Purchase Agreement dated as of November 24, 2003 (the "Purchase Agreement") with
OAKWOOD HOMES CORPORATION, a North Carolina corporation, and the other Persons
identified as "Sellers" therein (collectively, "Sellers"), providing, inter
alia, for Sellers' sale to Purchaser of all of each Seller's right, title and
interest in, to and under all Assets and Properties used in or relating to the
Business (but excluding the Excluded Assets), as such Assets and Properties
shall exist on the Closing Date (collectively, the "Transferred Assets"). Unless
otherwise defined herein, all capitalized items used herein shall have the
meanings ascribed to them in the Purchase Agreement.
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sellers do hereby sell, transfer,
convey, assign and deliver to Purchaser, its successors and assigns forever,
effective as of the Effective Time, all right, title and interest of Sellers in,
to and under the Transferred Assets TO HAVE AND TO HOLD the same unto Purchaser,
its successors and assigns, forever.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE
EXTENT SPECIFICALLY SET FORTH IN ARTICLE II OF THE PURCHASE AGREEMENT, PURCHASER
IS PURCHASING THE TRANSFERRED ASSETS ON AN "AS-IS, WHERE-IS" BASIS. EXCEPT AS
EXPRESSLY SET FORTH IN ARTICLE II OF THE PURCHASE AGREEMENT, SELLERS MAKE NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT
OF THE TRANSFERRED ASSETS, INCLUDING WITH RESPECT TO MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE
HEREBY EXPRESSLY DISCLAIMED.
Sellers shall execute and deliver all such further instruments
of conveyance, assignment and further assurances, and shall take all such
further acts as may be reasonably requested by Purchaser, in order to sell,
transfer, convey, assign and deliver to Purchaser all of Sellers' right, title
and interest in and to the Transferred Assets.
This General Assignment and Xxxx of Sale is subject to all of
the terms and conditions of the Purchase Agreement. In the event of any conflict
between the terms and conditions of this General Assignment and Xxxx of Sale and
the terms and conditions of the Purchase Agreement, the terms and conditions of
the Purchase Agreement shall control.
This General Assignment and Xxxx of Sale may be executed in
one or more counterparts and by facsimile signatures, each of which shall be
deemed to be an original and all of which together shall constitute one and the
same instrument. This General Assignment and Xxxx of Sale shall be governed by
and construed in accordance with the Laws of the State of Delaware applicable to
a contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof, and, to the extent applicable, the federal
Laws of the United States of America.
IN WITNESS WHEREOF, Sellers have caused this General
Assignment and Xxxx of Sale to be duly executed as of __________ ___, 2003.
OAKWOOD HOMES CORPORATION
By:__________________________________
Xxxxxx X. Xxxxx
Executive Vice President
OAKWOOD ACCEPTANCE CORPORATION, LLC
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
HBOS MANUFACTURING, LP
By: Oakwood Mobile Homes, Inc.,
Its General Partner
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
OAKWOOD MOBILE HOMES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
FSI FINANCIAL SERVICES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
HOME SERVICE CONTRACT, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
TRI-STATE INSURANCE AGENCY, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
NEW DIMENSION HOMES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
PREFERRED HOUSING SERVICES, LP
By: Oakwood Mobile Homes, Inc.,
Its General Partner
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
OAKWOOD SHARED SERVICES, LLC
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
GOLDEN WEST LEASING, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
SUBURBAN HOME SALES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
OAKWOOD FINANCIAL CORPORATION
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD INVESTMENT CORPORATION
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD TRANCHE A SERVICING ADVANCE
RECEIVABLES COMPANY, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD ADVANCE RECEIVABLES COMPANY
II, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OMI NOTE TRUST 2003-A
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:__________________________________
Name:
Title:
It is expressly understood and agreed by the parties that (a) this General
Assignment and Xxxx of Sale is executed and delivered by Wilmington Trust
Company, not individually or personally, but solely as Owner Trustee of OMI Note
Trust 2003-A in the exercise of the powers and authority conferred and vested in
it, pursuant to the Trust Agreement dated as of January 23, 2003 between Oak
Leaf Holdings, LLC and Wilmington Trust Company, (b) each of the
representations, undertakings and agreements herein made on the part of OMI Note
Trust 2003-A is made and intended not as personal representations undertakings
and agreements by Wilmington Trust Company but is made and intended for the
purpose of binding only OMI Note Trust 2003-A, (c) nothing herein contained
shall be construed as creating any liability of Wilmington Trust Company,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any being expressly waived by the
parties hereto and by any person claiming by through or under the parties
hereto, and (d) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of indebtedness or expenses of OMI Note Trust
2003-A or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by OMI Note Trust 2003-A under this
General Assignment and Xxxx of Sale or any other related documents.
EXHIBIT B
ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT (the "Agreement") is entered into as
of ____________ ___, 200__, by and between OAKWOOD HOMES CORPORATION, a Delaware
corporation, and the other Persons identified as "Sellers" in the Purchase
Agreement (as defined below) (collectively, "Sellers"), and XXXXXXX HOMES, INC.,
a Delaware corporation ("Purchaser"). Capitalized terms used herein and not
otherwise herein defined are used as defined in the Purchase Agreement.
W I T N E S S E T H:
WHEREAS, Sellers and Purchaser have entered into that certain
Asset Purchase Agreement dated as of November 24, 2003 (the "Purchase
Agreement") providing, inter alia, for Sellers' sale to Purchaser of all of each
Seller's right, title and interest in, to and under all Assets and Properties
used in or relating to the Business (but excluding the Excluded Assets), as such
Assets and Properties shall exist on the Closing Date (collectively, the
"Transferred Assets").
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Purchaser hereby
assumes and agrees to pay, perform, satisfy and discharge when due all Assumed
Liabilities.
Purchaser shall not assume the Excluded Liabilities, which
shall remain the sole obligation of Sellers and their respective successors and
assigns.
Purchaser shall execute and deliver all such further
instruments and further assurances, and shall take all such further acts as may
be reasonably requested by Sellers, in order to assume the Assumed Liabilities.
This Assumption Agreement is subject to all of the terms and
conditions of the Purchase Agreement. In the event of any conflict between the
terms and conditions of this Assumption Agreement and the terms and conditions
of the Purchase Agreement, the terms and conditions of the Purchase Agreement
shall control.
This Assumption Agreement may be executed in one or more
counterparts and by facsimile signatures, each of which shall be deemed to be an
original and all of which together shall constitute one and the same agreement.
This Assumption Agreement shall be governed by and construed in accordance with
the Laws of the State of Delaware applicable to a contract executed and
performed in such State, without giving effect to the conflicts of laws
principles thereof, and, to the extent applicable, the federal Laws of the
United States of America.
IN WITNESS WHEREOF, Sellers and Purchaser have caused this
Assumption Agreement to be duly executed as of the day and year first above
written.
SELLERS:
OAKWOOD HOMES CORPORATION
By:__________________________________
Xxxxxx X. Xxxxx
Executive Vice President
OAKWOOD ACCEPTANCE CORPORATION, LLC
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
HBOS MANUFACTURING, LP
By: Oakwood Mobile Homes, Inc.,
Its General Partner
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
OAKWOOD MOBILE HOMES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
FSI FINANCIAL SERVICES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
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HOME SERVICE CONTRACT, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
TRI-STATE INSURANCE AGENCY, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
NEW DIMENSION HOMES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
PREFERRED HOUSING SERVICES, LP
By: Oakwood Mobile Homes, Inc.,
Its General Partner
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
OAKWOOD SHARED SERVICES, LLC
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
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GOLDEN WEST LEASING, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
SUBURBAN HOME SALES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
OAKWOOD FINANCIAL CORPORATION
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD INVESTMENT CORPORATION
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD TRANCHE A SERVICING ADVANCE
RECEIVABLES COMPANY, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
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OAKWOOD ADVANCE RECEIVABLES COMPANY
II, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OMI NOTE TRUST 2003-A
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:__________________________________
Name:
Title:
It is expressly understood and agreed by the parties that (a) this Agreement is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Owner Trustee of OMI Note Trust 2003-A in the exercise
of the powers and authority conferred and vested in it, pursuant to the Trust
Agreement dated as of January 23, 2003 between Oak Leaf Holdings, LLC and
Wilmington Trust Company, (b) each of the representations, undertakings and
agreements herein made on the part of OMI Note Trust 2003-A is made and intended
not as personal representations undertakings and agreements by Wilmington Trust
Company but is made and intended for the purpose of binding only OMI Note Trust
2003-A, (c) nothing herein contained shall be construed as creating any
liability of Wilmington Trust Company, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any being expressly waived by the parties hereto and by any person claiming
by through or under the parties hereto, and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of indebtedness or
expenses of OMI Note Trust 2003-A or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by OMI Note
Trust 2003-A under this Agreement or any other related documents.
PURCHASER:
XXXXXXX HOMES, INC.
By:__________________________________
Name:
Title:
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EXHIBIT C
OFFICER'S CERTIFICATE
______________________, a __________ __________ ("Seller"),
pursuant to Section 6.03 of the Asset Purchase Agreement dated as of November
24, 2003 (the "Purchase Agreement") by and among Oakwood Homes Corporation,
Seller, the other Persons identified as "Sellers" therein, and Purchaser, does
hereby certify that:
1. The representations and warranties made by Seller in
the Purchase Agreement are true and correct in all material respects (except for
such representations and warranties that are qualified by their terms by
reference to materiality or Material Adverse Effect, which representations and
warranties as so qualified shall be true and correct in all respects) on and as
of the date hereof as though made on and as of the date hereof.
2. The agreements, covenants and obligations required by
the Purchase Agreement to be performed or complied with by Seller at or before
the Closing have been performed or complied with in all material respects.
Unless otherwise defined herein, all capitalized items used
herein shall have the meanings ascribed to them in the Purchase Agreement.
IN WITNESS WHEREOF, Seller has caused this Certificate to be
executed on its behalf by a duly authorized officer as of __________ ___, 200__.
[NAME OF SELLER]
By:__________________________________
Name:
Title:
EXHIBIT D
[ASSISTANT] SECRETARY'S CERTIFICATE
I, ______________________, [Assistant] Secretary of
___________________, a ______________________ __________________ ("Seller"),
pursuant to Section 6.03 of the Asset Purchase Agreement dated as of November
24, 2003 (the "Purchase Agreement") by and among Oakwood Homes Corporation,
Seller, the other Persons identified as "Sellers" therein, and Purchaser, does
hereby certify on behalf of Seller that:
1. Attached hereto as Exhibit A is a true, complete and
correct copy of the Articles or Certificate of Incorporation, the Certificate of
Limited Partnership or the Certificate of Formation, as applicable, of Seller as
currently in effect (the "Charter"), and no amendment or other document relating
to or affecting the Charter has been authorized.
2. Attached hereto as Exhibit B is a true, complete and
correct copy of the resolutions adopted by the board of directors, general
partners or other managing authority of Seller with respect to the Purchase
Agreement and the transactions contemplated thereby. All such resolutions are in
full force and effect on the date hereof in the form in which adopted and no
other such resolutions have been adopted by the board of directors, general
partners or other managing authority of Seller or any committee thereof relating
to the Purchase Agreement or the transactions contemplated thereby.
3. Each of the following named individuals is a duly
elected or appointed, qualified and acting officer of Seller who holds, and at
all times since the date of execution of Purchase Agreement has held, the
office(s) set forth opposite such individual's name, and the signature written
opposite the name and title of such officer is such officer's genuine signature:
[Name] [Title] __________________________________
[Name] [Title] __________________________________
[Name] [Title] __________________________________
[Name] [Title] __________________________________
Unless otherwise defined herein, all capitalized items used
herein shall have the meanings ascribed to them in the Purchase Agreement.
IN WITNESS WHEREOF, Seller has caused this Certificate to be
executed on its behalf by the undersigned as of _________ ___, 200__.
[NAME OF SELLER]
By:__________________________________
Name:_____________________________
Title:____________________________
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EXHIBIT E
OFFICER'S CERTIFICATE
Xxxxxxx Homes, Inc., a Delaware corporation ("Purchaser"),
pursuant to Section 7.03 of the Asset Purchase Agreement dated as of November
24, 2003 (the "Purchase Agreement") by and among Oakwood Homes Corporation, the
other Persons identified as "Sellers" therein and Purchaser, does hereby certify
that:
1. The representations and warranties made by Purchaser
in the Purchase Agreement are true and correct in all material respects (except
for such representations and warranties that are qualified by their terms by
reference to materiality or Material Adverse Effect, which representations and
warranties as so qualified shall be true and correct in all respects) on and as
of the date hereof as though made on and as of the date hereof.
2. The agreements, covenants and obligations required by
the Purchase Agreement to be performed or complied with by Purchaser at or
before the Closing have been duly performed or complied with in all material
respects.
Unless otherwise defined herein, all capitalized items used
herein shall have the meanings ascribed to them in the Purchase Agreement.
IN WITNESS WHEREOF, Purchaser has caused this Certificate to
be executed on its behalf by a duly authorized officer as of ___________ ___,
200___.
XXXXXXX HOMES, INC.
By:__________________________________
Name:
Title:
EXHIBIT F
[ASSISTANT] SECRETARY'S CERTIFICATE
I, ______________________, [Assistant] Secretary of Xxxxxxx
Homes, Inc., a Delaware corporation ("Purchaser"), pursuant to Section 7.03 of
the Asset Purchase Agreement dated as of November 24, 2003 (the "Purchase
Agreement") by and among Oakwood Homes Corporation, the other Persons identified
as "Sellers" therein and Purchaser, does hereby certify on behalf of Purchaser
that:
1. Attached hereto as Exhibit A is a true, complete and
correct copy of the Certificate of Incorporation of Purchaser as currently in
effect (the "Charter"), and no amendment or other document relating to or
affecting the Charter has been authorized.
2. Attached hereto as Exhibit B is a true, complete and
correct copy of the resolutions adopted by the board of directors of Purchaser
with respect to the Purchase Agreement and the transactions contemplated
thereby. All such resolutions are in full force and effect on the date hereof in
the form in which adopted and no other such resolutions have been adopted by the
board of directors of Purchaser or any committee thereof relating to the
Purchase Agreement or the transactions contemplated thereby.
3. Each of the following named individuals is a duly
elected or appointed, qualified and acting officer of Purchaser who holds, and
at all times since the date of execution of the Purchase Agreement has held, the
office(s) set forth opposite such individual's name, and the signature written
opposite the name and title of such officer is such officer's genuine signature:
[Name] [Title] ________________________________
[Name] [Title] ________________________________
[Name] [Title] ________________________________
[Name] [Title] ________________________________
Unless otherwise defined herein, all capitalized items used
herein shall have the meanings ascribed to them in the Purchase Agreement.
IN WITNESS WHEREOF, Purchaser has caused this Certificate to
be executed on its behalf by the undersigned as of __________ ___, 200__.
XXXXXXX HOMES, INC.
By:__________________________________
Name:_____________________________
Title:____________________________
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EXHIBIT G
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered
into as of ______________ ____, 2003, by and among XXXXXXX HOMES, INC., a
Delaware corporation ("Purchaser"), OAKWOOD HOMES CORPORATION, a North Carolina
corporation ("OHC"), the other Persons identified as "Sellers" in the Purchase
Agreement, and WILMINGTON TRUST COMPANY, as escrow agent (the "Escrow Agent").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement (as defined below).
R E C I T A L S:
A. On November 15, 2002, OHC and certain of its
affiliates (collectively, the "Debtors") filed a voluntary petition for relief
under chapter 11 of title 11 of the United States Code in jointly administered
Case No. 02-13396 (PJW) in the United States Bankruptcy Court for the District
of Delaware (the "U.S. Bankruptcy Court").
X. Xxxxxxx and Purchaser entered into that certain Asset
Purchase Agreement dated as of November 24, 2003 (the "Purchase Agreement")
which provides for Purchaser's acquisition of certain assets, properties and
liabilities used in or relating to the Business.
C. Pursuant to Section 1.05(b) of the Purchase
Agreement, Purchaser will deliver the Escrow Amount (together with all earnings
thereon and any and all amounts deposited in the Escrow Account from time to
time, the "Escrow Funds") to the Escrow Agent in order to provide a fund for any
amounts that may be due to Purchaser as a result of the post-closing working
capital adjustment pursuant to Section 1.08 of the Purchase Agreement.
D. Purchaser and Sellers desire that the Escrow Funds be
held in escrow in accordance with the terms and conditions contained in this
Agreement.
E. The Escrow Agent is willing to accept receipt of the
Escrow Funds and to serve as "Escrow Agent" under the terms and conditions
contained in this Agreement.
1. Establishment of Escrow Account. Purchaser will
deliver the Escrow Funds to the Escrow Agent by wire transfer in immediately
available United States funds on the Closing Date. Upon receipt of the Escrow
Funds, the Escrow Agent shall place the Escrow Funds into an interest bearing
account earning the highest interest rate offered by the Escrow Agent for
deposits of similar size (the "Escrow Account") at Wilmington Trust Company,
Wilmington, Delaware, which will be opened and maintained by the Escrow Agent in
accordance with the terms of this Agreement, and the Escrow Agent shall be the
only party authorized to make disbursements from the Escrow Account. The Escrow
Agent shall have no duty to invest the Escrow Funds. The Escrow Funds will be
disbursed only in accordance with the terms of this Agreement. The Escrow
Account shall not be commingled with other assets owned or held by the Escrow
Agent. The Escrow Account shall be titled in the Escrow Agent's name. The Escrow
Agent shall have no interest in the Escrow Funds and waives all rights of
setoff, recoupment or other banker's liens against the Escrow Funds, except in
connection with
the reimbursement of fees, costs and expenses of the Escrow Agent pursuant to
and in accordance with Section 4(e) and 4(f) hereof.
2. Disbursement of Escrow Funds. The Escrow Account
shall be held and disbursed by the Escrow Agent as follows:
(a) Within ten (10) days after the final
determination of the Total Purchase Price pursuant to Sections 1.04(a) and 1.08
of the Purchase Agreement, if the Total Purchase Price exceeds the Estimated
Purchase Price, the Purchaser and Seller, by joint written instruction, shall
direct the Escrow Agent to pay the Escrow Amount to the Estates on behalf of the
Sellers for distribution pursuant to the Plan, and within five (5) Business Days
of receipt of such instruction, the Escrow Agent shall so pay the Escrow Amount
to the Estates on behalf of the Sellers for distribution pursuant to the Plan.
(b) Within ten (10) days after the final
determination of the Total Purchase Price pursuant to Sections 1.04(a) and 1.08
of the Purchase Agreement, if the Estimated Purchase Price exceeds the Total
Purchase Price, the Purchaser and Seller, by joint written instruction, shall
direct the Escrow Agent to pay (i) an amount equal to such excess from the
Escrow Amount to Purchaser and (ii) the remainder of the Escrow Amount, if any,
to the Estates on behalf of Sellers for distribution pursuant to the Plan, and
within five (5) Business Days of receipt of such instruction, the Escrow Agent
shall so pay (i) an amount equal to such excess from the Escrow Amount to
Purchaser and (ii) the remainder of the Escrow Amount, if any, to the Estates on
behalf of Sellers for distribution pursuant to the Plan.
(c) Disbursements from the Escrow Account by the
Escrow Agent hereunder shall be made by wire transfer of immediately available
United States funds, without set-off or deduction of any kind.
(d) The Escrow Agent shall make disbursements
from the Escrow Account either (a) upon the Escrow Agent's receipt of a joint
written instruction of Sellers and the Purchaser, directing the Escrow Agent to
pay to the applicable party a specified amount from the Escrow Account or (b)
upon direction by a final order or judgment of the U.S. Bankruptcy Court from
which no appeal is or can be taken to pay to the applicable party a specified
amount from the Escrow Account, whereupon the Escrow Agent shall make such
disbursements in accordance with such instructions or such orders or judgments;
provided that the Escrow Agent may retain amounts necessary to pay the Escrow
Agent the amounts contemplated by Section 4(e).
3. Statements; Interest. The Escrow Agent agrees to
maintain account statements with respect to the Escrow Account setting forth
account balance, interest earned on the Escrow Funds and all other activity with
respect to the Escrow Funds. The Escrow Agent from time to time shall promptly
provide Sellers and Purchaser with a copy of an account statement for the Escrow
Account upon their reasonable request. All interest proceeds earned on the
Escrow Funds shall be paid to Sellers and Purchaser on a pro-rata basis based on
the proportionate amount of the Escrow Funds to which Sellers and Purchaser are
entitled, if any, under the terms of this Agreement.
2
4. Rights and Limitations upon Duties of Escrow Agent.
(a) The Escrow Agent shall not be responsible
for the identity, authority or rights of any person, firm or corporation
executing or delivering or purporting to execute or deliver this Agreement or
any document or instrument deposited hereunder or any endorsement thereon or
assignment thereof.
(b) The Escrow Agent acts hereunder as a
depository only and shall not be responsible or liable in any manner whatsoever
for the genuineness, sufficiency, correctness, or validity of any agreement,
document, certificate, instrument, or item deposited with it or any notice,
consent, approval, direction, or instruction given to it, and the Escrow Agent
shall be fully protected hereunder for all acts taken in accordance with any
written instruction, final order or judgment or instrument given to it
hereunder, and reasonably believed by the Escrow Agent to be genuine and what it
purports to be.
(c) It is understood and agreed that the duties
of the Escrow Agent hereunder are purely ministerial in nature and that the
Escrow Agent shall not be liable for any error of judgment, fact, or law, or any
act done or omitted to be done, except for its own willful misconduct or gross
negligence or that of its partners, employees, and agents. The Escrow Agent's
determination as to whether an event or condition has occurred, or been met or
satisfied, or as to whether a provision of this Agreement has been complied
with, or as to whether sufficient evidence of the event or condition or
compliance with the provision has been furnished to it, shall not subject the
Escrow Agent to any claim, liability, or obligation whatsoever, even if it shall
be found that such determination was improper and incorrect; provided that the
Escrow Agent and its partners, employees, and agents shall not have been guilty
of willful misconduct or gross negligence in making such determination.
(d) In the event any property held by the Escrow
Agent hereunder shall be attached, garnished or levied upon under any court
order, or if the delivery of such property shall be stayed or enjoined by any
court order, or if any court order, judgment or decree shall be made or entered
affecting such property or affecting any act by the Escrow Agent, the Escrow
Agent may, in its sole discretion, obey and comply with all writs, orders,
judgments or decrees so entered or issued notwithstanding any provision of this
Agreement to the contrary. If the Escrow Agent obeys and complies with any such
writs, orders, judgments or decrees, it shall not be liable to any of the
parties hereto or to any other person, firm, corporation or other entity, by
reason of such compliance, notwithstanding that such writs, orders, judgments or
decrees may be subsequently reversed, modified, annulled, set aside or vacated.
(e) The Escrow Agent shall be entitled to
receive its normal fees as compensation for its services hereunder as set forth
on Schedule A attached hereto. The Escrow Agent's fees, costs and expenses shall
be borne one-half by Sellers and one-half by Purchaser. Notwithstanding the
foregoing, Sellers and Purchaser jointly and severally agree to pay the
compensation of the Escrow Agent, and shall reimburse the Escrow Agent for any
and all reasonable expenses, disbursements and advances made by it in the
performance of its duties hereunder, including reasonable fees, expenses and
disbursements incurred by it. Upon receipt by Sellers and Purchaser of the
Escrow Agent's written notice itemizing such costs and expenses, the Escrow
Agent shall be entitled to the payment thereof within ten (10) days after
3
such written notice is given and Sellers and Purchaser hereby authorize the
Escrow Agent to pay such amounts to itself from the amounts held in the Escrow
Account; provided that the Escrow Agent shall be entitled to payment of its
first year's Annual Administration Fee upon the deposit of the Escrow Funds with
the Escrow Agent.
(f) Sellers and Purchaser jointly and severally
agree to indemnify the Escrow Agent for, and to hold it harmless against, any
loss, liability, or expense (collectively, "Costs") incurred, except to the
extent of those Costs attributable to gross negligence or willful misconduct on
the part of the Escrow Agent, arising out of or in connection with its entering
into this Agreement and carrying out its duties hereunder, including costs and
expenses of defending itself against any claim of liability in connection
herewith or therewith. The right to indemnification set forth in the preceding
sentence shall include the right to be paid by Sellers and Purchaser in respect
of Costs as they are incurred (including Costs incurred in connection with
defending itself against any claim of liability in connection herewith).
(g) The Escrow Agent shall not be required to
take any action under this Agreement if the Escrow Agent shall reasonably
determine, or shall have been advised by counsel, that such action is likely to
result in personal liability, or is contrary to the terms hereof, or otherwise
contrary to law.
(h) If at any time the Escrow Agent shall
receive conflicting notices, claims, demands, or instructions with respect to
the Escrow Account, or if for any other reason it shall in good faith be unable
to determine the party or parties entitled to receive any of the Escrow Funds,
or any part thereof, the Escrow Agent may refuse to make any distribution or
payment and may retain the Escrow Funds in its possession until it shall have
received instructions in writing concurred to by all parties in interest, or
until directed by a final order or judgment of the U.S. Bankruptcy Court from
which no appeal is or can be taken, whereupon the Escrow Agent shall make such
disposition in accordance with such instructions or such order. Alternatively,
the Escrow Agent may deposit all or any part of the Escrow Funds with the U.S.
Bankruptcy Court for disposition in accordance with further order(s) of the U.S.
Bankruptcy Court, in which event the Escrow Agent shall be discharged from any
further obligations hereunder.
(i) The Escrow Agent may consult with, and
obtain advice from, legal counsel in the event of any dispute or question as to
the construction of any of the provisions hereof or its duties hereunder, and it
shall incur no liability and shall be fully protected and indemnified under
Sections 4(c) and 4(f) above for all acts taken, in the absence of gross
negligence or willful misconduct, in accordance with the opinion and
instructions of such counsel, and the costs of such counsel shall be subject to
reimbursement under Section 4(f) and the notice requirement under Section 4(e).
(j) The Escrow Agent may resign at any time upon
giving the other parties hereto thirty (30) days notice to that effect. In that
event the successor escrow agent shall be such person, firm, corporation or
other entity as Sellers and Purchaser shall mutually select. It is understood
and agreed that the Escrow Agent's resignation shall not be effective until a
successor escrow agent agrees to act hereunder; provided, however, that in the
event no successor escrow agent is appointed and acting hereunder within thirty
(30) days of such notice,
4
the Escrow Agent may pay and deliver the Escrow Funds into the U.S. Bankruptcy
Court; and provided, further, that the Escrow Agent may appoint a successor
escrow agent hereunder at any time so long as such successor shall accept and
agree to be bound by the terms of this Agreement (except that any such successor
escrow agent shall be entitled to customary fees payable as provided herein) and
shall be a bank or trust company insured by the Federal Deposit Insurance
Corporation, authorized to do business in the State of Delaware.
(k) No person, firm, corporation or other entity
will be recognized by the Escrow Agent as a successor or assignee of Sellers and
Purchaser until there shall be presented to the Escrow Agent evidence
satisfactory to it of such succession or assignment.
5. Interpleader Action. In the event of any disagreement
between Sellers and Purchaser about the interpretation of this Agreement, or
about the rights and obligations or the propriety of any action contemplated by
the Escrow Agent hereunder or upon the resignation of the Escrow Agent and the
failure of the parties hereto to timely engage a successor, the Escrow Agent
may, at its sole discretion, file an action or xxxx in interpleader in the U.S.
Bankruptcy Court to determine the rights of the parties hereto and deposit the
balance of the Escrow Account with such court. The Escrow Agent shall be
indemnified by the parties hereto, jointly and severally, for all costs,
including reasonable attorney's fees, in connection with the aforesaid
interpleader action.
6. Term.
(a) This Agreement shall continue in full force
and effect until the disbursement of all of the Escrow Funds from the Escrow
Account.
(b) If at any time the Escrow Agent shall
receive a joint written notice signed by or on behalf of Sellers and Purchaser
that this Agreement has been terminated and instructing the Escrow Agent with
respect to the disposition of the Escrow Account, the Escrow Agent shall
disburse the balance of the Escrow Account in accordance with the instructions
contained in such notice, and upon such disbursement this Agreement shall be
deemed terminated, and the Escrow Agent shall be released and discharged from
all further obligations hereunder.
(c) Section 4(f) hereof shall survive
termination of this Agreement.
7. Miscellaneous.
(a) If one or more of the provisions contained
herein shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
(b) No waiver of any provisions of this
Agreement nor waiver of any breach or default under this Agreement shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any other provision or any
subsequent breach or default of a similar nature.
5
(c) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns, including post-confirmation trusts,
disbursing agents or other agents or professionals of the Estates, and it is not
the intention of the parties to confer third-party beneficiary rights upon any
other Person.
(d) All notices and other communications
hereunder shall be in writing and shall be given by hand delivery or by
facsimile transmission (and shall be deemed duly given on the date so given) or
by mail (registered or certified mail, postage prepaid return receipt requested)
(and shall be deemed duly given three business days thereafter if so given) to
the respective parties at the following addresses:
If to Purchaser:
Xxxxxxx Homes, Inc.
000 Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Fax No. (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Fax No. (000) 000-0000
If to Sellers:
Oakwood Homes Corporation
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Morris, Nichols, Arsht & Xxxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
6
and
Xxxxxxx Xxxxxx & Xxxxxx, P.A.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000-0000
Attn: C. Xxxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
and to the Committee, in care of:
King & Spalding LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
To the Escrow Agent:
Wilmington Trust Company
0000 X. Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: ___________________________
Facsimile: ______________________
Each of the foregoing shall be entitled to specify a different address by giving
notice as aforesaid to the other parties.
(e) This Agreement may be executed by facsimile
transmission and in one or more counterparts, each of which shall be deemed an
original and all of which taken together shall be deemed one and the same
Agreement. Delivery of an executed signature page by facsimile shall be binding
upon any party so executing.
(f) This Agreement may not be amended or
modified except by a written agreement signed by each of the parties hereto.
(g) This Agreement shall be construed, enforced
and administered in accordance with the laws of the Delaware, without regard to
any rules pertaining to conflicts of laws. EACH PARTY HERETO HEREBY IRREVOCABLY
CONSENTS, FOR ITSELF AND ITS LEGAL REPRESENTATIVES, PARTNERS, SUCCESSORS AND
ASSIGNS, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE,
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE OR THE U.S.
BANKRUPTCY COURT FOR ALL PURPOSES IN CONNECTION WITH ANY ACTION OR PROCEEDING
WHICH ARISES FROM OR RELATES TO THIS AGREEMENT, AND HEREBY WAIVES ANY RIGHTS IT
MAY HAVE TO PERSONAL SERVICE OF SUMMONS, COMPLAINT, OR OTHER PROCESS IN
CONNECTION THEREWITH, AND AGREES THAT SERVICE MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL
7
ADDRESSED TO SUCH PARTY AND SENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
8(d) HEREOF.
(h) This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof,
superseding all negotiations, prior discussions and preliminary agreements.
[Signature Page Follows]
8
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
XXXXXXX HOMES, INC.
By:__________________________________
Name:
Title:
OAKWOOD HOMES CORPORATION
By:__________________________________
Xxxxxx X. Xxxxx
Executive Vice President
OAKWOOD ACCEPTANCE CORPORATION, LLC
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
HBOS MANUFACTURING, LP
By: Oakwood Mobile Homes, Inc.,
Its General Partner
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
OAKWOOD MOBILE HOMES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
9
FSI FINANCIAL SERVICES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
HOME SERVICE CONTRACT, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
TRI-STATE INSURANCE AGENCY, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
NEW DIMENSION HOMES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
PREFERRED HOUSING SERVICES, LP
By: Oakwood Mobile Homes, Inc.,
Its General Partner
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
10
OAKWOOD SHARED SERVICES, LLC
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
GOLDEN WEST LEASING, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
SUBURBAN HOME SALES, INC.
By:__________________________________
Xxxxxx X. Xxxxx
Vice President
OAKWOOD FINANCIAL CORPORATION
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD INVESTMENT CORPORATION
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OAKWOOD TRANCHE A SERVICING ADVANCE
RECEIVABLES COMPANY, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
11
OAKWOOD ADVANCE RECEIVABLES COMPANY
II, LLC
By:__________________________________
Xxxxxxx X. Xxxx
Assistant Secretary
OMI NOTE TRUST 2003-A
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:__________________________________
Name:
Title:
It is expressly understood and agreed by the parties that (a) this Agreement is
executed and delivered on behalf of OMI Note Trust 2003-A by Wilmington Trust
Company, not individually or personally, but solely as Owner Trustee of OMI Note
Trust 2003-A in the exercise of the powers and authority conferred and vested in
it, pursuant to the Trust Agreement dated as of January 23, 2003 between Oak
Leaf Holdings, LLC and Wilmington Trust Company, (b) each of the
representations, undertakings and agreements herein made on the part of OMI Note
Trust 2003-A is made and intended not as personal representations undertakings
and agreements by Wilmington Trust Company but is made and intended for the
purpose of binding only OMI Note Trust 2003-A, (c) nothing herein contained
shall be construed as creating any liability of Wilmington Trust Company,
individually or personally, to perform any covenant of OMI Note Trust 2003-A
either expressed or implied contained herein, all such liability, if any being
expressly waived by the parties hereto and by any person claiming by through or
under the parties hereto, and (d) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of indebtedness or expenses of OMI
Note Trust 2003-A or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by OMI Note Trust 2003-A
under this Agreement or any other related documents.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:__________________________________
Name:
Title:
12
SCHEDULE A
ESCROW AGENT FEES
EXHIBIT H
OAKWOOD HOMES CORPORATION SALE BIDDING PROCEDURES
-------------------------------------------------
Set forth below are the bidding procedures (the "Bidding
Procedures") to be employed with respect to the sale of substantially all of
Seller's (as hereinafter defined) assets (the "Sale") pursuant to the Asset
Purchase Agreement by and between Oakwood Homes Corporation and its affiliated
sellers under the APA (collectively, the "Seller") and Xxxxxxx Homes, Inc. (the
"Purchaser"), dated November 24, 2003 (including all exhibits and agreements
attached thereto, the "Agreement"1), or such other sale of such assets to a
Qualified Bidder (as hereinafter defined) as may result from the Auction (as
hereinafter defined) contemplated hereby (an "Alternative Transaction") pursuant
to the Seller's to-be-filed joint consolidated plan of reorganization (as may be
amended, the "Plan").
Notwithstanding the selection of the Successful Bidder (as
hereinafter defined), and the execution of the Agreement (or the Marked
Agreement (as hereinafter defined)), as the case may be, the consummation of the
Sale or an Alternative Transaction provided for therein shall be contingent
upon, and made pursuant to, confirmation and the effectiveness of the Plan. If
no other Qualified Bid (as defined below) is received pursuant to the terms and
conditions set forth in these Bidding Procedures, then the Seller may close the
Sale with the Purchaser; provided, however, that if another Qualified Bid is
received by the Seller, then the Seller may close an Alternative Transaction
with such Qualified Bidder (as hereinafter defined) determined to have made the
highest or otherwise best offer in the Auction (as hereinafter defined)
consistent with these Bidding Procedures (the "Successful Bidder").
PARTICIPATION REQUIREMENTS
--------------------------
To Participate in the Bidding Process, each interested person
(a "Potential Bidder") must deliver the following to the Seller's Investment
Banker (as hereinafter defined), with a copy to the Committee's Financial
Advisors (as hereinafter defined), no later than 12:00 noon (Wilmington,
Delaware time) on the fifth business day after entry of the order approving
these Bidding Procedures or such other time as may be agreed by the Committee or
the Debtors:
(i) An executed confidentiality agreement in form and
substance reasonably satisfactory to the Seller,
which is no less favorable to Seller than the
confidentiality agreement (together with all
amendments thereto) executed by the Purchaser; and
-------------------
1 Unless otherwise defined herein, all capitalized terms shall have the
meanings set forth in the Agreement.
(ii) The most current audited and latest unaudited
financial statements (collectively, the "Financials")
of the Potential Bidder, or, if the Potential Bidder
does not have audited financial statements or is an
entity formed for the purpose of the Transaction, (x)
Financials of the equity holder(s) of the Potential
Bidder or such other form of financial disclosure
reasonably acceptable to the Seller or its legal and
financial advisors, or the Committee and its legal
and financial advisors and (y) the written commitment
of the equity holder(s) of the Potential Bidder to be
responsible for the Potential Bidder's obligations in
connection with the Transaction.
A "Qualified Bidder" is a Potential Bidder that delivers the
documents described in subparagraphs (i) and (ii) above, whose Financials
demonstrate, in the opinion of the Seller and its legal and financial advisors,
or the Committee and its legal and financial advisors, (x) the financial
capability to consummate an Alternative Transaction, and (y) the ability to
consummate an Alternative Transaction if selected as a Successful Bidder.
Notwithstanding anything to the contrary herein, the Purchaser is a Qualified
Bidder.
Within two (2) business days after Seller's Investment Banker
receives from a Potential Bidder all of the materials required by subparagraphs
(i) and (ii) above, the Seller or the Committee shall determine, and Seller's
Investment Banker shall notify the Potential Bidder in writing, whether the
Potential Bidder is a Qualified Bidder. If the Potential Bidder is a Qualified
Bidder, at the same time that the Seller notifies the Potential Bidder that it
is a Qualified Bidder, the Seller shall deliver to the Qualified Bidder a copy
of the confidential investment memorandum prepared by Seller's Investment Banker
and the Agreement.
After the determination by the Seller or the Committee whether
any person is a Qualified Bidder, the Seller shall (i) coordinate the efforts of
Qualified Bidders in conducting their respective due diligence investigations
regarding the Seller in accordance with these Bidding Procedures, (ii) receive
bids from Qualified Bidders, and (iii) negotiate any bid made to purchase the
Seller (collectively, the "Bidding Process"). Any person who wishes to
participate in the Bidding Process must be a Qualified Bidder as set forth
below. Neither the Seller nor any of its affiliates (nor any of their respective
representatives) shall furnish any nonpublic information of any kind whatsoever
relating to the Seller to any person who is not a Qualified Bidder.
OBTAINING DUE DILIGENCE ACCESS
------------------------------
To obtain due diligence access or additional information from
the Seller, a Qualified Bidder (other than Purchaser) must first provide the
Seller's Investment Banker (with a copy simultaneously delivered to the
Committee's Financial Advisors) with a written non-binding expression of
interest ("Expression of Interest") regarding (i) the Transaction, (ii) the
purchase price range, (iii) the structure and financing of the transaction
(including, if applicable, the amount of equity to be committed and sources of
financing), (iv) any conditions to closing, and (v) the nature and extent of
additional due diligence it may wish to conduct. If, based on the
-3-
Expression of Interest and such additional factors as the Seller determines
(after consultation with the Committee) are relevant, the Seller, in its
business judgment, determines that the Qualified Bidder is reasonably likely to
make a bona fide higher or otherwise better offer for the Seller's assets than
offered by the Purchaser, the Seller shall, after consultation with the
Committee, afford such Qualified Bidder reasonable due diligence.
Neither the Seller nor any of its affiliates (or any of their
respective representatives) shall furnish any nonpublic information relating to
the Seller to any person except to the Purchaser or a Qualified Bidder who makes
an acceptable Expression of Interest. Seller shall give the Purchaser access to
all due diligence information provided to any other Qualified Bidder at the same
time as, or immediately after, it is given.
The Seller shall coordinate all reasonable requests for
additional information and due diligence access from Qualified Bidders. No
conditions relating to the completion of due diligence shall be permitted to
exist after the Bid Deadline (as hereinafter defined).
DUE DILIGENCE FROM BIDDERS
--------------------------
Seller's Investment Banker and the Committee's Financial
Advisors shall be entitled to due diligence from the Qualified Bidder (other
than Purchaser), upon execution of a reasonable confidentiality agreement. The
Qualified Bidder shall comply with all reasonable requests for additional
information and due diligence access by the Seller's Investment Banker and the
Committee's Financial Advisors. Failure by the Qualified Bidder (other than
Purchaser) to fully and promptly comply with requests for additional information
and due diligence will be a basis for Seller, after consultation with the
Committee, to determine that the limited bid as well as any subsequent bid made
by the Qualified Bidder is not a Qualified Bid.
BID REQUIREMENTS
----------------
A bid must be a written irrevocable offer from a Qualified
Bidder (i) stating that the Qualified Bidder offers to consummate the
Transaction as contemplated by the Agreement, upon the terms and conditions
(other than the Break-Up Fee) set forth in a copy of the Agreement, marked to
show those amendments and modifications to the Agreement, including price and
terms, that the Qualified Bidder proposes (and which are in form and substance
acceptable to the Seller after consultation with the Committee, the "Marked
Agreement"); (ii) enclosing a copy of the proposed Marked Agreement; and (iii)
accompanied with (a) a certified or bank check, or wire transfer, in the amount
of fourteen million dollars ($14,000,000) payable to the order of the Seller as
a good-faith deposit (the "Good Faith Deposit"), and (b) written evidence of a
commitment for financing or other evidence of ability to consummate the
transaction, subject to no conditions other than those set forth in the Marked
Agreement, in either event satisfactory to the Seller in consultation with its
financial and legal advisors and the Committee.
In addition to the foregoing requirements, the Seller, after
consultation with the Committee, will consider a bid only if the bid:
a. provides for an aggregate purchase price of at least
three million dollars ($3,000,000) over the sum of
(x) the aggregate purchase price offered by
-4-
the Purchaser in the Agreement (which shall be
evaluated based, among other things, on all relevant
information, including the cash purchase price, and
working capital adjustment and assumption of all
liabilities set forth in the Marked Agreement,
without regard to the Break-Up Fee), and (y) the
Break-Up Fee;
b. provides that all cash and securities (other than
equity securities) which are components of the
purchase price are denominated in U.S. Dollars only;
c. is not conditioned on the outcome of unperformed due
diligence by the bidder with respect to the Seller;
d. does not request or entitle the bidder to a break-up
fee, an expense reimbursement or any similar type of
payment; and
e. fully discloses the identity of each entity that will
be bidding for the Seller or otherwise participating
in connection with such bid, and the complete terms
of any such participation.
A bid received from a Qualified Bidder that meets the
requirements set forth in the preceding two paragraphs will be considered a
"Qualified Bid." For purposes hereof, the Agreement executed by the Purchaser
shall constitute a Qualified Bid, but under no circumstances will Purchaser be
required to make a Good Faith Deposit. Nothing in these Bidding Procedures will
be deemed to amend Purchaser's rights under the Agreement.
BID DEADLINE
------------
The deadline for submitting bids by a Qualified Bidder,
regardless of when such Qualified Bidder became a Qualified Bidder, shall be
12:00 noon (Wilmington, Delaware time) on (i) January 7, 2004, if the hearing on
these Bidding Procedures (the "Bid Procedures Hearing") is on or before December
11, 2003; or (ii) January 12, 2004, if the Bid Procedures Hearing is after
December 11, 2003 (the "Bid Deadline").
A Qualified Bidder that desires to make a bid shall deliver
written copies of its bid to (A) Xxxxxx Buckfire Xxxxx Xxxx & Co., LLC, 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxx Xxxxxx, fax
number (000) 000-0000 (the "Seller's Investment Banker"); (B) Xxxxxx Xxxxxxx
Arsht & Xxxxxxx, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxx, fax number 000-000-0000; (C) Xxxxxxx, Xxxxxx &
Xxxxxx, The Carillon, Suite 1200, 000 Xxxx Xxxxx Xx., Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000, Attention: C. Xxxxxxx Xxxxxxx, Xx., fax number (000) 000-0000; (D) King &
Xxxxxxxx, 0000 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
Xxxxxx X. Xxxxx, fax number (000) 000-0000; (E) Xxxxxxx & Marsal, 000 Xxxxxx
Xxxxxx, Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, fax
number (000) 000-0000 (the "Committee's Financial Advisors"); and (F) Xxxxxx,
Xxxxxx & Xxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000-0000, Attention: Xxxxxx X. Xxxxxx, fax number 000-000-0000, no later than
the Bid Deadline.
-5-
"AS IS, WHERE IS"
-----------------
The Sale shall be on an "as is, where is" basis and without
representations or warranties of any kind, nature or description by the Seller,
its agents or its estates, except to the extent expressly set forth in the
Agreement or the Marked Agreement, as the case may be.
AUCTION
-------
If Qualified Bids are received by the Bid Deadline, the Seller
will conduct an auction (the "Auction") with respect to the Transaction. THE
AUCTION SHALL TAKE PLACE AT 10:00 A.M. (WILMINGTON, DELAWARE TIME) ON (i)
JANUARY 9, 2004, IF THE BID PROCEDURES HEARING IS ON OR BEFORE DECEMBER 11,
2003; OR (ii) JANUARY 14, 2004, IF THE BID PROCEDURES HEARING IS AFTER DECEMBER
11, 2003, AT THE OFFICES OF XXXXXX XXXXXXX ARSHT & XXXXXXX, 0000 XXXXX XXXXXX
XXXXXX, XXXXXXXXXX, XXXXXXXX or such later time or other place as the Seller
shall notify all Qualified Bidders who have submitted Qualified Bids. Only a
Qualified Bidder who has submitted a Qualified Bid will be eligible to
participate at the Auction. Only the authorized representatives of each of the
Qualified Bidders, the Committee, the Purchaser and the Seller shall be
permitted to attend the Auction. At the Auction, Qualified Bidders will be
permitted to increase their bids. The bidding at the Auction shall start at the
purchase price stated in the highest or otherwise best Qualified Bid, as
determined by the Seller, after consultation with legal and financial advisors
and the Committee, and as disclosed to all Qualified Bidders prior to the
commencement of the Auction, and continue in increments of at least one million
dollars ($1,000,000).
Immediately prior to the conclusion of the Auction, the
Seller, in consultation with its financial and legal advisors and the Committee,
shall (i) review each Qualified Bid on the basis of its financial and
contractual terms and the factors relevant to the sale process and the best
interests of the Seller's estates, including, without limitation, those factors
affecting the speed and certainty of consummating the Sale, the adequacy of the
consideration offered (including liquidity of any equity component), finance and
other contingencies, and antitrust and competition law considerations, and (ii)
identify the highest or otherwise best offer (based upon all relevant
information) for the Transaction (the "Successful Bid").
ACCEPTANCE OF SUCCESSFUL BID
----------------------------
The Seller presently intends to enter into a Transaction with
the Successful Bidder, whether such entity is the Purchaser or another Qualified
Bidder. Pursuant to the order of the Bankruptcy Court approving the Bidding
Procedures (the "Bidding Procedures Order"), the Agreement or Marked Agreement
shall constitute a binding contract of Seller only to the extent that
performance is called for before the closing under such agreement. The Seller
intends to present the results of the Auction and the Agreement or the Marked
Agreement, as the case may be, to the Bankruptcy Court at a hearing (the
"Approval Hearing"), at which the Seller will request that the Bankruptcy Court
(i) confirm the results of the Auction, including that the Auction complied with
the Bidding Procedures and the Bidding Procedures Order, and (ii) approve the
selection of the Successful Bid and the Successful Bidder, as the highest or
otherwise best offer for the Seller. The Approval Hearing shall be held no
earlier than five
-6-
business days after the Auction, but in no event later than January 25, 2004
(Wilmington, Delaware time).
However, neither (a) the Seller's inclusion of the Successful
Bid in the Plan or Disclosure Statement or presentation of the Successful Bid
and the Agreement or Marked Agreement, as applicable, at an Approval Hearing,
nor (b) the entry of an order approving the Disclosure Statement (or any other
order approving the Agreement or the Marked Agreement before confirmation of the
Plan) by the applicable Court, shall obligate the Seller to consummate the
Transaction. The Seller will be obligated to consummate the Transaction and the
Bankruptcy Court will have approved the Transaction only when the Plan, as
amended to give effect to the Successful Bid, has been confirmed and the
effective date thereof occurs.
INCORPORATION OF SUCCESSFUL BID INTO PLAN
-----------------------------------------
The terms of the Successful Bid shall be incorporated into the
Plan, which, together with the Disclosure Statement shall be amended to the
extent required to give effect thereto. The closing of the Sale shall be
contingent upon confirmation of the Plan and the occurrence of the effective
date of the Plan
RETURN OF GOOD FAITH DEPOSIT; QUALIFIED BIDS STAY OPEN
------------------------------------------------------
Pending the entry of the Approval Order, all Good Faith
Deposits shall be maintained by the Seller in one or more interest-bearing
escrow accounts. All Qualified Bids (except any bids made by Purchaser) must
remain open, until the eleventh day after entry of the Approval Order or the
next business day thereafter. Pending such date, all Good Faith Deposits shall
be maintained by the Seller in one or more interest-bearing escrow accounts and
shall be returned to unsuccessful bidders on the eleventh day (or the next
business day thereafter) after entry of the Approval Order with any accrued
interest.
OTHER PROVISIONS
----------------
The Seller may, after consultation with the Committee, (i)
determine, in its business judgment, which Qualified Bid, if any, is the
Successful Bid; and (ii) reject at any time before entry of the Approval Order,
any bid that, the Seller determines, is (a) inadequate or insufficient, (b) not
in conformity with the requirements of the Bankruptcy Code, the Bidding
Procedures, or the terms and conditions of Sale, or (c) contrary to the best
interest of the Seller and its estates. In the event that the Committee or any
other party in interest disagrees with the manner in which the Seller conducted
the Bidding Process or the selection of the Successful Bid, it may assert its
objection at the Approval Hearing. The Seller, after consultation with the
Committee, shall have the right to adopt such other rules for the Bidding
Process which, in its sole judgment, will better promote the goals of the
Bidding Process and which are not inconsistent with any of the provisions of
these Bidding Procedures. At the Auction, after consultation with the Committee,
the Seller may announce any such additional procedural rules for conducting the
Auction.
-7-
EXHIBIT J
CALCULATION OF WORKING CAPITAL ADJUSTMENT AMOUNT
CASH
PURCHASE
PRICE
SEPT 30 INCREASE
(IN THOUSANDS) 2003 (DECREASE)
------- ------- ----------
RETAINED INTEREST IN REMICS - REGULAR 4,228
RETAINED INTEREST IN REMICS - RESIDUAL 12,508
SERVICING ASSET 23,859
OTHER RECEIVABLES SCHEDULE 1 96,152 -
INVENTORIES SCHEDULE 2 113,343 -
OTHER ASSETS SCHEDULE 3 3,611 -
------- -------
TOTAL 253,701 -
======= =======
ADD: PROPERTIES AND FACILITIES PURCHASES
AFTER SEPTEMBER 30, 2003
DEDUCT: PROPERTIES AND FACILITIES SALES PROCEEDS
AFTER SEPTEMBER 30, 2003
----------
WORKING CAPITAL ADJUSTMENT AMOUNT
==========
ASSET ADJUSTMENT AMOUNT (1,806)
==========
Page 1 of 2
EXHIBIT J
CALCULATION OF WORKING CAPITAL ADJUSTMENT AMOUNT
SEPT 30
SCHEDULE 1 (000'S OMITTED) 2003
------- -------
OTHER RECEIVABLES
ACCRUED INTEREST 442
TRADE ACCOUNTS RECEIVABLE - WHOLESALE, NET 28,156
REBATES RECEIVABLE/VOLUME DISCOUNTS 1,890
ESCROW ADVANCES RECEIVABLE 16,064
EXTENSIONS RECEIVABLE 33,793
COSTS ADVANCED TO REMICS ON UNLIQUIDATED REPOS 8,791
COSTS ADVANCED TO REMICS ON LIQUIDATED REPOS 364
SERVICE FEE RECEIVABLE 4,154
OTHER 2,498 -
------- -------
96,152 -
======= =======
SCHEDULE 2 (000'S OMITTED)
INVENTORIES
MANUFACTURED HOMES - NEW, USED AND REPOSSESSED 79,257
RAW MATERIALS AND SUPPLIES 19,325
WORK-IN-PROCESS 4,419
LAND/HOMES UNDER DEVELOPMENT 10,342
------- -------
113,343 -
======= =======
SCHEDULE 3 (000'S OMITTED)
OTHER ASSETS
NOTES RECEIVABLE, NET 453
PREPAID EXPENSES 2,744 -
OTHER 414 -
------- -------
3,611 -
======= =======
Page 2 of 2
Actual
9/30/03
Other receivables:
Insurance commissions receivable $ 759
Employee receivables - expense advances 528
Receivable from joint ventures - Suburban 383
Notes receivable - independent dealers 362
Vendor claims receivable 137
Accounts receivable - parts sales 130
Other receivables < $100,000 199
------- -------
$ 2,498 $ -
======= =======
Actual
9/30/03
Sales center lot sets (amortized over 12 months) 677
Model home lot sets (Suburban) 290
Prepaid service contracts (software maintenance) 563
Prepaid rent (sales centers) 481
Prepaid retail forms (charged off as used) 160
Other prepaid expenses (< $100,000 each) 573
------- -------
2,744 -
======= =======
Actual
9/30/03
Other assets:
Endorsement fees $ 303
Other receivables < $100,000 111
------- ------
$ 414 $ -
======= ======
EXHIBIT K
ADDITIONAL LOAN AMOUNT CRITERIA
Pool requirements for 93% purchase price.
Portfolio limits:
LTV <=85%
New product >=100%
Single Section <=10%
FICO, including 0s >675
Custom score >=230
Prepaid Finance charges <=3%
APR >=10%
Over 30 day accounts (which for purposes of this Exhibit K means accounts which,
as of the Closing Date, have an earliest date on which is due an unpaid regular
installment of principal and interest greater than 30 days earlier than the
Closing Date) shall not exceed 4.0% of the aggregate principal balance of all
loans which otherwise meet the criteria of this Exhibit K; and no account shall
have an earliest date on which is due an unpaid regular installment of principal
and interest greater than 60 days earlier than the Closing Date.
No extended accounts (which for purposes of this Exhibit K means that not more
than 2.5% of the chattel and mortgage loans subject to this Exhibit K, measured
by the number of such loans, otherwise meeting the criteria of this Exhibit K
shall have had either (a) the first scheduled payment extended or advanced by a
person or entity other than the obligor under such loan or (b) the first two
scheduled payments extended or advanced by a person or entity other than the
obligor under such loan; provided, that notwithstanding the foregoing, none of
such loans' most recent payment(s) shall have been extended by Sellers or any
Affiliate of Seller, or any servicer on behalf of Sellers, in order to satisfy
the delinquency or other representations set forth in this Exhibit K.)
10% Downpayment loans <=40%
Loan level:
Min APR = 6%
Max LTV = 100%
Prepaid Finance Charges <=8%
EXHIBIT L
P&I ADVANCES
September 30,
REMIC TRUST 0000
Xxxx-Xxxxx Advances:
OAC 1992-1 25,338.53
MLMI 1994-G 264,530.18
OAC 1994-1 206,857.45
OMI 1994-A 236,508.37
OAC 1995-1 138,917.11
OMI 1995-A 379,537.52
OMI 1995-B 437,368.57
OAC 1996-1 280,598.55
OMI 1996-A 386,698.53
OMI 1996-B 644,463.93
OMI 1996-C 728,765.27
OMI 1997-A 487,094.65
OMI 1997-B 579,623.15
OMI 1997-C 683,867.22
OMI 1997-D 788,583.08
DFCS 1997-I 531,925.17
OMI 1998-A 761,010.69
OMI 1998-B 1,280,258.29
DFCS 1998-I 754,644.57
-------------
Total loan-level 9,596,590.83
-------------
Pool-Level Advances:
OMI 1998-C 563,120.73
XXX 0000-X -
XXX 0000-X -
XXX 0000-X 162,071.30
OMI 1999-C 421,465.88
OMI 1999-D 169,970.18
XXX 0000-X -
XXX 0000-X 89,195.56
OMI 2000-B 158,246.82
OMI 2000-C 20,061.14
OMI 2000-D 631,872.06
OMI 2001-B 909,425.20
OMI 2001-C 1,183,692.84
OMI 2001-D 250,859.87
XXX 0000-X -
XXX 0000-X 110,734.10
OMI 2002-B -
OMI 2002-C -
-------------
Total pool-level 4,670,715.68
-------------
Total Loan-Level and Pool-Level 14,267,306.51
=============
SELLERS' DISCLOSURE SCHEDULE
Reference is made to the Asset Purchase Agreement (the "Agreement"),
dated as of November 24, 2003, by and among Oakwood Homes Corporation and the
other Persons named therein as Sellers and Xxxxxxx Homes, Inc. Capitalized terms
used herein but not otherwise defined herein shall have the respective meanings
ascribed thereto in the Agreement. Unless specifically indicated otherwise, the
names of the parties to the various agreements referenced to in these Schedules
are used as they were used in such agreements. The headings in these Schedules
are for reference only and shall not affect the interpretation of the Agreement
or these Schedules.
These Schedules are to be read in their entirety and are subject in
their entirety to the entry of the Confirmation Order, the effect of the
commencement and continuation of the Reorganization Cases and the terms and
conditions of the Confirmation Order, the Plan and the Disclosure Statement.
Nothing in these Schedules is intended to broaden the scope of any
representation or warranty contained in the Agreement. The disclosure of any
item in the Article II sections of these Schedules is disclosure of that item
for all purposes for which disclosure is required under Article II of the
Agreement and is disclosure in all appropriate Article II Schedules provided
that the description of an item in a particular Schedule on its face contains
information adequate to inform a reader of the applicability of such item to
other. Inclusion of any item in these Schedules (1) does not represent a
determination by Sellers that such item is material and shall not be deemed to
establish a standard of materiality, and (2) does not represent a determination
by Sellers that such item did not arise in the Ordinary Course of Business or is
required to be disclosed in response to such item.
SELLERS' DISCLOSURE SCHEDULES
IDENTIFICATION OF SELLERS
Oakwood Homes Corporation, a corporation organized under the laws of North
Carolina;
Oakwood Acceptance Corporation, LLC, a limited liability company organized under
the laws of Delaware;
HBOS Manufacturing, LP, a limited partnership organized under the laws of
Delaware;
Oakwood Mobile Homes, Inc., a corporation organized under the laws of North
Carolina;
FSI Financial Services, Inc., a corporation organized under the laws of
Michigan;
Home Service Contract, Inc., a corporation organized under the laws of Michigan;
Tri-State Insurance Agency, Inc., a corporation organized under the laws of
Michigan;
New Dimension Homes, Inc., a corporation organized under the laws of Delaware;
Preferred Housing Services, LP, a limited partnership organized under the laws
of Delaware;
Oakwood Shared Services, LLC, a limited liability company organized under the
laws of Delaware;
Golden West Leasing, LLC, a limited liability company organized under the laws
of Nevada;
Suburban Home Sales, Inc., a corporation organized under the laws of Michigan.
Oakwood Financial Corporation, a corporation organized under the laws of Nevada;
Oakwood Investment Corporation, a corporation organized under the laws of
Nevada;
Oakwood Tranche A Servicing Advance Receivables Company, LLC a limited liability
company organized under the laws of Nevada;
Oakwood Advance Receivables Company II, LLC, a limited liability company
organized under the laws of Nevada;
OMI Note Trust 2003-A, Delaware statutory trust
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(a)(iii)
POST PETITION REAL PROPERTY LEASES
Lease for Henderson NC retail Store
Lessor: Xxxx Xxxxxx
Term December 1, 2003 to November 30, 2004
Date of Agreement: October 23, 2003
Annual rent amount: $42,000
EXCLUDED LEASES
None
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(a)(vi)
POST-PETITION PERSONAL PROPERTY LEASES
EXCLUDED PERSONAL PROPERTY LEASES
None
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(a)(vii)
POST-PETITION BUSINESS CONTRACTS
BUSINESS CONTRACTS ENTERED POST-PETITION BUT BEFORE AGREEMENT EXECUTED
ANNUAL
VENDOR COMMITMENT TERM OF CONTRACT TERM DATE RENEWAL DATE DESCRIPTION
Microsoft: Enterprise
Agreement $ 398,000 3 Years 3/27/2006 1/27/2006 Software Licensing
Sprint $1,400,000 2 Years 11/1/2005 11/1/2005 Voice and Data Services
Local Voice Services
BellSouth $ 300,000 2 Years 12/1/2005 Auto w/ 90 day out (Southeast Region)
Unix Software Support
Prolifics $ 180,000 3 Years 6/23/2006 5/23/2006 (Jams)
Cox $ 7,200 1 Year October-05 Auto w/ 30 day out Data Services - Retail
Charter $ 15,000 1 Year October-05 Auto w/ 30 day out Data Services - Retail
AllTel $ 5,100 1 Year October-05 Auto w/ 30 day out Data Services - Retail
TWT $ 14,100 1 Year September-05 Auto w/ 30 day out Data Services - Retail
Trans Edge $ 1,320 1 Year October-05 Auto w/ 30 day out Data Services - Retail
Texas Unwired $ 1,680 1 Year October-05 Auto w/ 30 day out Data Services - Retail
Sprint/Charter $ 1,560 1 Year October-05 Auto w/ 30 day out Data Services - Retail
Sprint/ComCast $ 2,340 1 Year November-05 Auto w/ 30 day out Data Services - Retail
Adelphia 1 Year Auto w/ 30 day out Data Services - Retail
Ameritech 1 Year Auto w/ 30 day out Data Services - Retail
BellSouth 1 Year Auto w/ 30 day out Data Services - Retail
Chillicothe Telephone 1 Year Auto w/ 30 day out Data Services - Retail
Lexcom Telephone 1 Year Auto w/ 30 day out Data Services - Retail
Pacific Xxxx 1 Year Auto w/ 30 day out Data Services - Retail
Qwest 1 Year Auto w/ 30 day out Data Services - Retail
Southwestern Xxxx 1 Year Auto w/ 30 day out Data Services - Retail
Sprint 1 Year Auto w/ 30 day out Data Services - Retail
Verizon South 1 Year Auto w/ 30 day out Data Services - Retail
XX Xxxxxxx: World $ 335,000 Annual Maintenance Contract
EXCLUDED CONTRACTS
None
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(a)(xv)
REMIC RECEIVABLES
Unreimbursed liquidation expenses with respect to repossessed and foreclosed
properties.
P&I advances, including all extension advances.
All servicing advances, including escrow advances, and all corporate advances.
**Due to the fact that Oakwood Servicing Holdings Co., LLC ("OSHC") is not a
Seller, Sellers shall cause OSHC to execute and deliver to Purchaser at Closing
a xxxx of sale transferring all of its right, title and interest to the above
receivables, free and clear of all liens, claims and encumbrances to Purchaser
or its designated Affiliate.
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(iii)
EXCLUDED REAL PROPERTY
-------------------------------------------------------------------
Owner Location City State Zip County
-------------------------------------------------------------------
OMHI 000 X. Xxxxxxx Xx. Xxxxxxxxxx XX 00000 New Hanover
-------------------------------------------------------------------
OMHI Sewer Plant Greensboro NC Guilford
Sheraton Park Road
-------------------------------------------------------------------
OMHI XXX xx Xxxxx Xxx. 00 Xxxx Xxxx XX Sedgwick
and E. 77th St. North
-------------------------------------------------------------------
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(iv)
EXCLUDED ACCOUNTS RECEIVABLE
Receivables from FHA for insurance claims on collateral sold
on or before the Closing Date.
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(v)
EXCLUDED TANGIBLE PERSONAL PROPERTY
The use of office furniture, equipment and supplies, and
office space as necessary to conduct the winding up of the
Sellers' operations for a period of six (6) months.
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(vi)
EXCLUDED INTANGIBLE PERSONAL PROPERTY
Software required by Seller for certain post-closing accounting and record
keeping shall be subject to a separate royalty-free sublicense agreement to be
negotiated by the parties.
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(vii)
EXCLUDED VEHICLES
None
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(viii)
EXCLUDED BOOKS AND RECORDS
None
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(x)
EXCLUDED SECURITY DEPOSITS
Deposits serving as collateral for Letters of Credit
Tax deposits
Servicing transition escrow deposits and program transition escrow deposits
Bankruptcy related retainers and deposits
Customer deposits relating to any contract not assumed by Purchaser
Deposits securing repurchase obligations to floorplan lenders
Escrows held with respect to obligations not assumed by Purchaser
Deposits with vendors to secure payment of post-petition obligations not assumed
by Purchaser
Cash deposits securing workers' compensation obligations
Deposits with respect to real property leases not assumed by Purchaser
Tranche B DIP Loan Trustee Expense Reserve Account
Tranche B DIP Loan Reserve Account
Deposit with Arkansas Manufactured Housing Commission
The "Holdback Amount," as defined in that certain Purchase and Sale Agreement
dated as of October 8, 2003 among OMI Note Trust 2003-A, Oakwood Acceptance
Corporation, LLC and Vanderbilt Mortgage and Finance, Inc.
The "Holdback Amount," as defined in that certain Purchase and Sale Agreement
dated as of August 20, 2003 among OMI Note Trust 2003-A, Oakwood Acceptance
Corporation, LLC and Vanderbilt Mortgage and Finance, Inc.
The "Retained Amount," as defined in that certain Amended and Restated
Settlement Agreement dated as of October 8, 2003 among OMI Note Trust 2003-A and
Greenwich Capital Financial Products, Inc.
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(xi)
EXCLUDED LITIGATION CLAIMS
(in addition to those described in Section 1.01(b)(xi))
All counterclaims and affirmative defenses to any claim not assumed by
the Purchaser.
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(xii)
EXCLUDED INVESTMENTS
All direct or indirect interests in Subsidiaries of Sellers, except the
following:
Investments in joint ventures by Suburban Home Sales, Inc. (ND Long Neck,
LLC and ND Montrose, LLC)
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.01(b)(xiv)
OTHER EXCLUDED ASSETS AND PROPERTIES
1. All REMIC Class R Certificates including any "NERDS" (non-economic
interests related to REMIC assets), except for the class R REMIC
certificates for REMIC 1994-1, REMIC 1994-A, REMIC 1995-1 and the 1996
Resecuritization REMIC, provided that any or all of the class R REMIC
certificates for REMIC 1994-1, REMIC 1994-A, REMIC 1995-A and 1996
Resecuritization REMIC which may be deemed Excluded Assets at any time
prior to Closing by Purchaser delivering written notice thereof to OHC.
2. Retroactive commission due from insurance underwriter (American
Bankers) based on performance of book of business for 12 months ending
9/30/03 and for any other preclosing period, specifically 10/1/03
through closing.
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.02
ASSUMED LIABILITIES
I. Repurchase obligations to floor plan lenders as listed below (and as
modified by Court order). Updated as of September 30, 2003.
-------------------------------------------------------------------------------------------------------------------------
NAME ADDRESS CITY STATE ZIP CLAIM
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
FLOORPLAN LENDERS
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Bombardier Capital 000 Xxxxxxxx Xxxx Xx. Xxxxxxxxxx XX 00000 $23,070,000
-------------------------------------------------------------------------------------------------------------------------
Textron Financial Corp. 0000 Xxxxx Xxxxx Xxxx #000 Xxxxxxxxx XX 00000 $22,460,000
-------------------------------------------------------------------------------------------------------------------------
Vanderbilt Mortgage 000 Xxxxx Xxxxx Xxxxxxxxx XX 00000 $ 2,980,000 [1]
-------------------------------------------------------------------------------------------------------------------------
Sterling Savings 000 X. Xxxx Xxxxxxx XX 00000 $ 1,470,000 [1]
-------------------------------------------------------------------------------------------------------------------------
Countryside Flooring 0000 X. Xxxxxxx Xxxx., Xxxx Xxxx Xxxx XX 00000 - [1]
Xxxxx 000
-------------------------------------------------------------------------------------------------------------------------
Bank of the West 000 X. Xxxxxx Xxx Xxxxxx XX 00000 $ 470,000 [1]
-------------------------------------------------------------------------------------------------------------------------
Xxx Banco 000 Xxxxx Xx. Xxxxxxx XX 00000 $ 500,000 [1]
-------------------------------------------------------------------------------------------------------------------------
Village Bank 0000 Xxxxxxx Xxx XX Xxxxxx XX 00000 $ 250,000 [1]
-------------------------------------------------------------------------------------------------------------------------
Shelby State Bank 000 Xxxxx Xxxxxxxx Xxx. Xxxxxx XX 00000 $ 500,000 [1]
-------------------------------------------------------------------------------------------------------------------------
River Bank 0000 Xxxxxxxxx Xx. Xxxxxx XX 00000 $ 100,000 [1]
-------------------------------------------------------------------------------------------------------------------------
Old National Bank 000 Xxxx Xxxxxx Xxxxxxxxxx XX 00000 $ 500,000 [1]
-------------------------------------------------------------------------------------------------------------------------
First Shore Federal X X XXX 0000 Xxxxxxxxx XX 00000 $ 740,000 [1]
Savings
-------------------------------------------------------------------------------------------------------------------------
Xxxxx Fargo Bank (formerly 000 Xxxxxxx Xxx. Xxxxxxxx XX 00000 $ 500,000 [1]
First National Bank)
-------------------------------------------------------------------------------------------------------------------------
Community Bank 360,000
-------------------------------------------------------------------------------------------------------------------------
Citizens Bank 000 X. Xxxxxxxxxx Xx. Xxxxxxx XX 00000 325,000
-------------------------------------------------------------------------------------------------------------------------
Profile Bank 00 Xxxxxxxxx Xx. Xxxxxxxxx, XX 115,000
-------------------------------------------------------------------------------------------------------------------------
Bank of Rogers Rogers AR 100,000
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Note 1: Estimates per Xxx Xxxxxxxxx. Floor plan TOTAL: $54,440,000
repurchase summaries not provided by banks.
-------------------------------------------------------------------------------------------------------------------------
II. Obligations related to various assets of Suburban Home Sales, Inc. and
its subsidiaries, principally motor vehicles, office equipment and
land.
III. Obligations to pay FHA insurance premiums with respect to loans insured
by FHA having an aggregate principal balance of approximately $59.9
million (as of October 31, 2003) only as required as New Servicer under
relevant Pooling and Servicing Agreements.
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.09(a)
PRE-PETITION CONTRACTS ASSUMED BY SELLERS BEFORE AGREEMENT EXECUTED
Three separate orders pursuant to Sections 365 and 363 of the Bankruptcy Code,
Oakwood Acceptance Corporation, LLC ("OAC") previously assumed the servicing
agreements included in the pre-petition Pooling and Servicing Agreements
referenced in Section 4.13 of Sellers' Disclosure Schedules (the "Servicing
Agreements") and OAC subsequently assigned such Servicing Agreements and rights
to all outstanding unreimbursed advances made and liquidation expenses and other
amounts advanced by OAC to or on behalf of the various REMIC securitization
trusts under the Servicing Agreements, to Oakwood Servicing Holdings Co., LLC
("OSHC") pursuant to Assignment, Contribution and Assumption Agreements, and
subsequently OAC entered into related subservicing agreements with OSHC.
Amended Floorplan Repurchase Agreement Between HBOS Manufacuring, L.P.,
Bombardier Capital Inc. and Bombardier Capital Ltd.
Guaranty of Repurchase Obligations Between Oakwood Homes Corporation and
Bombardier Capital Inc.
Amended Floorplan Repurchase Agreement Between HBOS Manufacuring, L.P. and
Textron Financial Corporation
Guaranty of Repurchase Obligations Between Certain Debtors and Textron Financial
Corporation
Amended Floorplan Repurchase Agreement Between HBOS Manufacuring, L.P. and
Vanderbilt Mortgage and Finance Inc.
Guaranty of Repurchase Obligations Between Certain Debtors and Vanderbilt
Mortgage and Finance Inc.
Executory Contract with Pacific Employers Insurance Company
Executory Contract with J&J Builders, Inc. (completed contract)
EXCLUDED CONTRACTS
Purchaser is not assuming any Pooling and Servicing Agreements (including the
Servicing Agreements as described above) or any related subservicing agreements;
provided, that Purchaser shall be entitled to collect, receive and recover all
outstanding unreimbursed advances made and liquidation expenses and other
amounts advanced by OAC or OSHC to or on behalf of the various REMIC
securitization trusts under the Servicing Agreements (the "Securitization
Advances") which Securitization Advances are being transferred to Purchaser
pursuant to the terms of the Agreement.
Amended Floorplan Repurchase Agreement Between HBOS Manufacturing, L.P.,
Bombardier Capital Inc. and Bombardier Capital Ltd.
Guaranty of Repurchase Obligations Between Oakwood Homes Corporation and
Bombardier Capital Inc.
Amended Floorplan Repurchase Agreement Between HBOS Manufacturing, L.P. and
Textron Financial Corporation
Guaranty of Repurchase Obligations Between Certain Debtors and Textron Financial
Corporation
Amended Floorplan Repurchase Agreement Between HBOS Manufacturing, L.P. and
Vanderbilt Mortgage and Finance Inc.
Guaranty of Repurchase Obligations Between Certain Debtors and Vanderbilt
Mortgage and Finance Inc.
Executory Contract with Pacific Employers Insurance Company
Executory Contract with J&J Builders, Inc. (completed contract)
SELLERS' DISCLOSURE SCHEDULES
SECTION 1.09(b)
CONTRACTS TO BE ASSUMED
CONTRACTS TO BE ASSUMED SECTION 1.09 (b)
NAME ADDRESS/AMOUNT CONTRACT TYPE
GBA Software Agreement
Davox Software Agreement
Customer deposits - retail $ 9,525,935*
Customer deposits - independent dealers $ 733,665
Customer deposits - Suburban $ 492,461
Deposit on property sale - Xxxxx $ 62,000
Customer deposits - wholesale repo customers $ 12,000
Infinium Software Agreement
Kronos Software Agreement
Nevada Holding Services 000 Xxxxxxxxxx Xxxxxx Xx, Xxxxx 000, Xxx Xxxxx, XX Lease: Office & Services
Nevada Holding Services 000 Xxxxxxxxxx Xxxxxx Xx, Xxxxx 000, Xxx Xxxxx, XX Lease: Office & Services
98 "Continuing Operation" Retail Sales Center
XXXX COUNTRY HOMES INC XX Xxx 000 Xxx Xxxxxx XX DEALER NOTE
COUSINS MOD DBA BROOKSIDE 000 XX 00X, Xxxxxxxxxx, XX DEALER NOTE
COUSINS MOD DBA BROOKSIDE 000 XX 00X, Xxxxxxxxxx, XX DEALER NOTE
COUSINS MOD DBA BROOKSIDE 000 XX 00X, Xxxxxxxxxx, XX DEALER NOTE
CUSTOM MANUFACTURED HOMES 0000 Xxxxx Xxxx Xxx, Xxxxx Xxxx, XX DEALER NOTE
GOLDEN PACIFIC HOMES INC 0000 X. 00xx Xxx., Xxxxxxxx XX DEALER NOTE
LAKES HOME CENTER 00000 Xx 00 Xxx 0000, Xxxxxxx, XX DEALER NOTE
NAME DESCRIPTION 1 DESCRIPTION 2
GBA Accounting Fixed asset system
Davox Collection Auto Dialer
Customer deposits - retail Deposits Accounts payable and accrued liabilities - accounts payable
Customer deposits - independent dealers Deposits Accounts payable and accrued liabilities - other
Customer deposits - Suburban Deposits Accounts payable and accrued liabilities - accounts payable
Deposit on property sale - Xxxxx Deposits Accounts payable and accrued liabilities - other
Customer deposits - wholesale repo customers Deposits Accounts payable and accrued liabilities - other
Infinium Payroll/HR Payroll/HR system
Kronos Payroll/HR Payroll time keeping system
Nevada Holding Services Tax Lease office space and services for tax purposes
Nevada Holding Services Tax Lease office space and services for tax purposes
98 "Continuing Operation" Retail Sales Center Property Leases
XXXX COUNTRY HOMES INC Loan
COUSINS MOD DBA BROOKSIDE Loan
COUSINS MOD DBA BROOKSIDE Loan
COUSINS MOD DBA BROOKSIDE Loan
CUSTOM MANUFACTURED HOMES Loan
GOLDEN PACIFIC HOMES INC Loan
LAKES HOME CENTER Loan
PREMIER SALES & SERVICE - Golden Pacific 000 Xxxxxxx Xxxxxx Xx, Xxxxxxx Xxxx, XX DEALER NOTE Loan
XXXXX XXXXXXXXXX MFG HS 000 X. Xxxxxxxxxx, Xxxxxxx, XX DEALER NOTE Loan
SUMMIT HOMES OF S. GA INC XX Xxx 0000, Xxxxxxxx, XX DEALER NOTE Loan
SUMMIT HOMES OF S. GA INC XX Xxx 0000, Xxxxxxxx, XX DEALER NOTE Loan
WJC ENTERPRISES CORP DBA Leader Home Sales DEALER NOTE Loan
UNIVERSAL TERMITE AND PEST CONTROL 00xx xxx Xxxx, Xxxxx XX GENERAL SERVICE AGREEMENT Service Contract
XXXXXX MOBILE HOME SALES, INC 0000 XX Xxxxx, Xxxxxxxx XX LEASE: BUILDING Lease
XXXXXX MOBILE HOME SALES 0000 XX Xxxxx, Xxxxxxxx XX LEASE: BUILDING AND LAND Lease
WINAT PROPERTIES 00000 Xxxxxxx Xxxxx Xxxx, Xxx Xxxxxxx, XX LEASE: BUILDING AND LAND Lease
NMHG FINANCIAL SERVICES XX Xxx 000000, Xxxxxxxxxx, XX LEASE: HEAVY EQUIPMENT Forklift lease
SIMPLEX XXXXXXXX PURCHASE AGREEMENT Service Contract
GOLDEN PACIFIC HOMES INC 0000 X. 00xx Xxx., Xxxxxxxx XX VIP Advance Loan
Citicapital XX Xxx 000000, Xxxxxxxxx XX Lease Vehicles
*AS OF SEPTEMBER 30, 2003
EXCLUDED CONTRACTS
1. Name Address Contract Type Description 1 Description 2
---- ------- ------------- ------------- -------------
AllTel Information XX Xxx 0000 Mortgage service agreement Collection Servicing system
Services contract Jacksonville, FL
Obligations as Interim OMI Trust 2003A Greenwich Capital
Servicer Financial
Fair Xxxxxx contract
SELLERS' DISCLOSURE SCHEDULES
SECTION 2.01
NON-SELLER OHC SUBSIDIARIES
Oakwood Mortgage Investors, Inc.
Dreamstreet Company LLC
Oakwood MHD4, LLC
Oakwood International MGMT, LLC
Oakwood International, LP
Tarheel Insurance Company, LTD
Oakwood Capital Corp
Oak Leaf Holdings, LLC
OMI Note Trust 2001-A (Previously Dissolved)
Oakwood Advance Receivables Company, LLC (Previously Dissolved)
Oakwood Servicing Holdings Co. LLC
Oakwood NSPV-1 Corporation
Crest Capital LLC
SELLERS' DISCLOSURE SCHEDULES
SECTION 2.05
NOTICES, CONSENTS AND APPROVALS
Xxxx-Xxxxx Xxxxxx (as described in Section 4.02)
Bankruptcy Court approval of Plan
Unanimous consent of directors of Oakwood Investment
Corporation (two of whom are independent)
Consent of Alpine Securitization Corp. and Credit Suisse First
Boston, New York Branch, to sale of assets by OMI Note Trust
2003-A, with consequent release of lien by JPMorgan Chase,
Indenture Trustee
SELLERS' DISCLOSURE SCHEDULES
SECTION 2.06
LEGAL PROCEEDINGS
None
SELLERS' DISCLOSURE SCHEDULES
SECTION 2.11(a)
TAX RETURNS
Tax Returns: Oakwood and its debtor-subsidiaries have numerous unfiled state tax
returns outstanding, however, none of these returns show a liability greater
than $50,000.00 and, in the aggregate, total estimated liabilities of
$185,513.00.
Unpaid Taxes: the following information pertains to undisputed tax liabilities,
each in excess of $50,000.00, that are due but as yet unpaid:
------------------------------------------------------------------------------
Claimant Name Type of Tax Estimated Amount Owed
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Internal Revenue Service Federal Income $1,229,854.47
------------------------------------------------------------------------------
Elkhart County, Indiana City/County $ 272,434.34
------------------------------------------------------------------------------
North Carolina Department of Revenue State Income $ 194,704.00
------------------------------------------------------------------------------
Hill County, Texas City/County $ 125,296.37
------------------------------------------------------------------------------
Xxxxx County City/County $ 101,194.34
------------------------------------------------------------------------------
Tennessee Department of Revenue State Income $ 70,525.80
------------------------------------------------------------------------------
West Virginia Department of Revenue State Income $ 67,680.00
------------------------------------------------------------------------------
Sub-total $2,061,689.32
Please note that this list is limited to single tax claims over $50,000.00,
exclusive of penalties and interest.
In addition to the above claims, Oakwood estimates that it owes approximately
$801,074.95 in property taxes to numerous jurisdictions. These taxes,
individually, would not be "material," however due to the large aggregate
liability, Oakwood discloses these liabilities here. Additional information
about these property taxes is available upon request.
SELLERS' DISCLOSURE SCHEDULES
SECTION 2.12
TITLE MATTERS
UCC filings per the attached schedule.
------------------------------------------------------------------------------------------------
Debtor Name Filing
Jurisdiction Searched Secured Party Found File #
------------------------------------------------------------------------------------------------
North Carolina Secretary Oakwood Homes LaSalle Bristol UCC-3 20020113808G
of State Corporation Corporation Continuation
------------------------------------------------------------------------------------------------
North Carolina Secretary Oakwood Homes Xxxxxxx Systems Corp. UCC-1 20020028619L
of State Corp. AND Xxxxxx
Mobile Homes,
Xxxxxx Service
Dept., and Xxxxxx
Homes
------------------------------------------------------------------------------------------------
North Carolina Secretary Oakwood Mobile Yale Financial UCC 20020019184F
of State Homes, Inc. Services, Inc. In-Lieu
of Filing
------------------------------------------------------------------------------------------------
Delaware Secretary of New Dimension Textron Financial UCC-1 21605710
State Homes, Inc. Corporation
------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Jurisdiction Date Filed Collateral
-----------------------------------------------------------------------------------------
North Carolina Secretary 10/24/2002 Continuation of the original file no. 19980015716
of State filed 4/20/1998
-----------------------------------------------------------------------------------------
North Carolina Secretary 3/8/2002 Pneumatic Tools
of State
-----------------------------------------------------------------------------------------
North Carolina Secretary 2/12/2002 In-Lieu of filing to continue their filing in
of State Indiana and Arizona both filed 3/12/1997. The
collateral is two (2) new leased Yale Forklifts.
-----------------------------------------------------------------------------------------
Delaware Secretary of 7/1/2002 Blanket Lien
State
-----------------------------------------------------------------------------------------
SELLERS' DISCLOSURE SCHEDULES
SECTION 2.13
SHARED FACILITIES OR SERVICES
None
SELLERS' DISCLOSURE SCHEDULES
SECTION 2.17(c)
LOCATION MANAGERS TERMINATED WITHIN PAST 3 MONTHS
PLANT AND SALES CENTER GENERAL MGRS THAT TERMINATED
08/24/03 - 11/24/03
TERM
UNIT EMP# EMPLOYEE NAME HIRE DATE POSITION DATE
4002 5349 XXXXX,XXXXX X 0/00/0000 XXX XXX - XX 0000 10/10/2003 Retail
5202 11772 XXXXXXX,XXXXXX X 0/00/0000 XXX XXX - XX 0000 10/22/2003 Retail
4070 16222 XXXXXXXX,XXXXX C 6/03/1998 GEN MGR - SC 4070 8/25/2003 Retail
4197 16447 XXXXXXXX JR,VAN S 4/24/2003 GEN MGR - SC 4197 9/05/2003 Retail
4275 17259 XXXXXXX,XXXXX X 0/00/0000 XXX XXX - XX 0000 10/08/2003 Retail
4260 18810 XXXXXX,XXXXXXX W 2/22/1999 GEN MGR - SC 4260 11/03/2003 Retail
4446 18917 XXXXXX,XXXX X 3/01/1999 GEN MGR - SC 4446 11/13/2003 Retail
4311 21649 XXXXX,XXXXX C 12/13/1999 GEN MGR - SC 4311 11/14/2003 Retail
4024 26026 XXXXXX, XXXXX X 6/19/2001 GEN MGR - SC 4024 11/20/2003
4099 26605 XXXX,XXXXX A 10/15/2001 GEN MGR - SC 4099 9/12/2003 Retail
4333 27549 XXXXXX,XXXXXX M 6/17/2002 GEN MGR - SC 4333 11/13/2003 Retail
4052 28277 XXXXX, XXXXXX X. 0/00/0000 XXX XXX - XX 0000 11/14/2003
6100 80618 XXXXXX,XXXXXX X 12/06/1979 GEN MGR - P1&2 10/10/2003 Plant
SELLERS' DISCLOSURE SCHEDULE
SECTION 4.13
POOLING AND SERVICING AGREEMENTS
---------------------------------------------------------------------------------------------------------------
Series
and Amendments to Senior in
Date of Original The Pooling & Priority
Pooling & Servicing Servicing Annual
Agreement Agreement Fees% Parties Involved
---------------------------------------------------------------------------------------------------------------
Oakwood Acceptance Amendment to 1.60% Oakwood Acceptance Corporation
Corporation, Series 1992-1 Standard Terms NationsBank of Virginia, N.A., as Trustee (now
dated June 5, 1995 the Bank of New York)
(July 1, 1992)
Amendment No. 1
dated 2/28/96
---------------------------------------------------------------------------------------------------------------
Oakwood Acceptance Amendment No. 1 1.00% Oakwood Acceptance Corporation
Corporation, Series 1994-1 dated Sept. 28, 2001 NationsBank of Virginia, N.A., as Trustee (now
the Bank of New York)
(July 1, 1994)
---------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1994-A dated Sept. 28, 2001 1.00% Oakwood Acceptance Corporation
NationsBank of Virginia, N.A., as Trustee (now
the Bank of New York)
(November 1, 1994)
---------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Mortgage Xxxxxxx Xxxxx Mortgage Investors, Inc.
Investors, Inc., Series 1994-G Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 NationsBank of Virginia, N.A., as Trustee (now
the Bank of New York)
(April 1, 1994)
---------------------------------------------------------------------------------------------------------------
Oakwood Acceptance Amendment No. 1 1.00% Oakwood Acceptance Corporation
Corporation, Series 1995-1 dated Sept. 28, 2001 NationsBank of Virginia, N.A., as Trustee (now
the Bank of New York)
(February 1, 1995)
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Series
and Amendments to Senior in
Date of Original The Pooling & Priority
Pooling & Servicing Servicing Annual
Agreement Agreement Fees% Parties Involved
---------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1995-A Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 NationsBank of Virginia, N.A., as Trustee (now
the Bank of New York)
(June 1, 1995)
---------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1995-B Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
Manhattan Bank)
(October 1, 1995)
---------------------------------------------------------------------------------------------------------------
Oakwood Acceptance Oakwood Acceptance Corporation
Corporation, Series 1996-1 Amendment No. 1 1.00% NationsBank of Virginia, N.A., as Trustee (now
dated Sept. 28, 2001 the Bank of New York)
(April 1, 1996)
---------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1996-A Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
Manhattan Bank)
(February 1, 1996)
---------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1996-B Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
Manhattan Bank)
(July 1, 1996)
---------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1996-C Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
Manhattan Bank)
(October 1, 1996)
---------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Series
and Amendments to The Senior in
Date of Original Pooling & Pooling & Servicing Priority Annual
Servicing Agreement Agreement Fees% Parties Involved
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1997-A Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
(February 1, 1997) Manhattan Bank)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1997-B Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
(May 1, 1997) Manhattan Bank)
----------------------------------------------------------------------------------------------------------------------
Deutsche Financial Capital Deutsche Financial Capital Securitization
Securitization LLC, Series Amendment No. 1 1.00% L.L.C.
1997-I dated Sept. 28, 2001 Oakwood Acceptance Corporation
PNC Bank, N.A., as Trustee (now The Chase
(June 1, 1997) Manhattan Bank)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1997-C Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
(August 1, 1997) Manhattan Bank)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1997-D Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
(November 1, 1997) Manhattan Bank)
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Series
and Amendments to The Senior in
Date of Original Pooling & Pooling & Servicing Priority Annual
Servicing Agreement Agreement Fees% Parties Involved
----------------------------------------------------------------------------------------------------------------------
Deutsche Financial Capital Deutsche Financial Capital Securitization
Securitization, LLC, Series Amendment No. 1 1.00% L.L.C.
1998-I dated Sept. 28, 2001 Oakwood Acceptance Corporation
PNC Bank, N.A., as Trustee (now The Chase
(January 1, 1998) Manhattan Bank)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 1998-A Amendment No. 1 1.00% Oakwood Acceptance Corporation
dated Sept. 28, 2001 PNC Bank, N.A., as Trustee (now The Chase
(February 1, 1998) Manhattan Bank)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1998-B dated December 12, 1.00% Oakwood Acceptance Corporation
2000 PNC Bank, N.A., as Trustee (now The Chase
(May 1, 1998) Amendment No. 2 Manhattan Bank)
dated Sept. 28, 2001
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1998-C dated December 12, 1.00% Oakwood Acceptance Corporation
2000 PNC Bank, N.A., as Trustee (now The Xxxxx
(Xxxxxx 0, 0000) Xxxxxxxxx Xx. 0 Xxxxxxxxx Xxxx)
dated Sept. 28, 2001
Amendment No. 3
dated August 10,
2001
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1998-D dated April 29, 1999 1.00% Oakwood Acceptance Corporation
Amendment No. 2 PNC Bank, N.A., as Trustee (now The Chase
(October 1, 1998) dated Sept. 28, 2001 Manhattan Bank)
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Series
and Amendments to The Senior in
Date of Original Pooling & Pooling & Servicing Priority Annual
Servicing Agreement Agreement Fees% Parties Involved
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1999-A dated Sept. 28, 2001 1.00% Oakwood Acceptance Corporation
The Chase Manhattan Bank, as Trustee
(January 1, 1999)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1999-B dated Sept. 28, 2001 1.00% Oakwood Acceptance Corporation
The Chase Manhattan Bank, as Trustee
(April 1, 1999)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1999-C dated November 15, 1.00% Oakwood Acceptance Corporation
2000 The Chase Manhattan Bank, as Trustee
(June 1, 1999) Amendment No. 2
dated December 12,
2000
Amendment No. 3
dated Sept. 28, 2001
Amendment No. 4
dated August 10,
2001
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1999-D dated December 12, 1.00% Oakwood Acceptance Corporation
2000 The Chase Manhattan Bank, as Trustee
(August 1, 1999) Amendment No. 2
dated Sept. 28, 2001
Amendment No. 3
dated August 10,
2001
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Series
and Amendments to The Senior in
Date of Original Pooling & Pooling & Servicing Priority Annual
Servicing Agreement Agreement Fees% Parties Involved
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 1999-E dated December 11, 1.00% Oakwood Acceptance Corporation
2000 The Chase Manhattan Bank, as Trustee
(November 1, 1999) Amendment No. 2
dated Sept. 28, 2001
Amendment No. 3
dated August 10,
2001
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 2000-A dated December 11, 1.00% Oakwood Acceptance Corporation
2000 The Chase Manhattan Bank, as Trustee
(March 1, 2000) Amendment No. 2
dated Sept. 28, 2001
Amendment No. 3
dated August 10,
2001
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 2000-B dated Sept. 28, 1.00% Oakwood Acceptance Corporation
2001 and Amendment The Chase Manhattan Bank, as Trustee
(June 1, 2000) No 1 dated 12/11/00
and
Amendment No. 2
dated August 10,
2001
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Series
and Amendments to The Senior in
Date of Original Pooling & Pooling & Servicing Priority Annual
Servicing Agreement Agreement Fees% Parties Involved
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 2000-C dated December 1, 1.50% Oakwood Acceptance Corporation
2000 Xxxxx Fargo Bank Minnesota, N.A., as Trustee
(Sept. 1, 2000) Amendment No. 2
dated December 14,
2000
Amendment No. 3
dated Sept. 28, 2001
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 2000-D dated Sept. 28, 2001 1.50% Oakwood Acceptance Corporation
Xxxxx Fargo Bank Minnesota, N.A., as Trustee
(December 1, 2000)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 2001-B dated Sept. 28, 2001 1.50% Oakwood Acceptance Corporation
Amendment No. 2 The Chase Manhattan Bank, as Trustee
(February 1, 2001) dated August 10,
2001
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 2001-C dated 10/02/01 1.50% Oakwood Acceptance Corporation
Amendment No. 2 The Chase Manhattan Bank, as Trustee
(May 1, 2001) dated August 10,
2001
Amendment No. 3
dated December 12,
2001
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Series
and Amendments to The Senior in
Date of Original Pooling & Pooling & Servicing Priority Annual
Servicing Agreement Agreement Fees% Parties Involved
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Amendment No. 1 Oakwood Mortgage Investors, Inc.
Inc., Series 2001-D dated 10/02/01 1.50% Oakwood Acceptance Corporation
Amendment No. 1 The Chase Manhattan Bank, as Trustee
(August 1, 2001) dated December 12,
2001
Amendment No. 2
dated December 13,
2001
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 2001-E 1.50% Oakwood Acceptance Corporation, LLC
JPMorgan Chase Bank, as Trustee
(November 1, 2001)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 2002-A 1.50% Oakwood Acceptance Corporation, LLC
JPMorgan Chase Bank, as Trustee
(February 1, 2002)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 2002-B 1.50% Oakwood Acceptance Corporation, LLC
JPMorgan Chase Bank, as Trustee
(May 1, 2002)
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc., Series 2002-C 1.50% Oakwood Acceptance Corporation, LLC
JPMorgan Chase Bank, as Trustee
(August 1, 2002)
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Series
and Amendments to The Senior in
Date of Original Pooling & Pooling & Servicing Priority Annual
Servicing Agreement Agreement Fees% Parties Involved
----------------------------------------------------------------------------------------------------------------------
Oakwood Mortgage Investors, Oakwood Mortgage Investors, Inc.
Inc. Oakwood Acceptance Corporation, LLC
Resecuritization Trust XX Xxxxxx Xxxxx Bank, as Trustee
2001 and Securities Intermediary
Supplements
8/1/01
2/1/02
3/1/02
6/1/02
----------------------------------------------------------------------------------------------------------------------
*Note that there is no "Servicer" pursuant to the Trust documents for Oakwood
Mortgage Investors, Inc. Resecuritization Trust 2001 and related supplements,
rather the title of OAC is "Securities Administrator."
EXCLUDED SERVICING AGREEMENTS
Greenwich Servicing Agreement
Oakwood Financial Corporation Series 1996 (February 15, 1996)
SELLERS' DISCLOSURE SCHEDULE
SECTION 5.03
OUTSTANDING LETTERS OF CREDIT
--------------------------------------------------------------------------------------------------------
Standby LC # Issue Date Expiry Date Beneficiary Max LC Amt.
--------------------------------------------------------------------------------------------------------
434138 3/19/2002 4/19/2003 Xxxxxxxx County Board of Comm. $ 10,000.00
--------------------------------------------------------------------------------------------------------
434107 3/18/2002 10/18/2003 CitiCapital Fleet $ 750,000.00
--------------------------------------------------------------------------------------------------------
*434976 3/28/2002 3/20/2004 U.S. Fire Insurance Co. $ 400,000.00(1)
--------------------------------------------------------------------------------------------------------
*434909 4/5/2002 1/16/2004 U.S. Fire Insurance Co. $ 6,050,582.00
--------------------------------------------------------------------------------------------------------
NZS488380 6/30/2004 Textron Financial Corp. $ 4,000,000.00
--------------------------------------------------------------------------------------------------------
NZS477046 3/31/2004 Bombardier Capital, Inc. $ 3,500,000.00
--------------------------------------------------------------------------------------------------------
**XXX000000 3/20/2004 Cincinnati Insurance Co. $ 500,000.00
--------------------------------------------------------------------------------------------------------
***NZS477410 4/20/2004 U.S. Fire Insurance Co. $ 500,000.00
--------------------------------------------------------------------------------------------------------
TOTAL: $15,710,582.00
--------------------------------------------------------------------------------------------------------
*Letters of Credit nos. 434976 and 434909 collateralize pre-petition bonds
issued by U.S. Fire Insurance Co. in face amounts totaling approximately $16.3
million.
** Letter of Credit no. XXX000000 collateralizes post-petition bonds issued by
Cincinnati Insurance Co. in face amounts totalling approximately $3.8 million.
*** Letter of Credit no. NZS477410 collateralizes post-petition bonds issued by
U.S. Fire Insurance Co. in face amounts totalling approximately $245,000.00.
---------------------
(1) The letter of credit is for $7,500,000, which includes $7,100,000 to secure
worker's comp risk.
