EXHIBIT 10.2
INDENTURE
OAKWOOD ADVANCE RECEIVABLES COMPANY, L.L.C.
as Issuer
and
THE CHASE MANHATTAN BANK,
AS TRUSTEE, VERIFICATION AGENT AND PAYING AGENT
and
OAKWOOD ACCEPTANCE CORPORATION,
INDIVIDUALLY AND AS REMIC SERVICER
DATED AS OF SEPTEMBER 28, 2001
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OAC ADVANCE RECEIVABLES BACKED NOTES, SERIES 2001-ADV
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS..........................................................................................1
Section 1.01. Definitions............................................................................1
Section 1.02. Interpretation........................................................................17
ARTICLE II CREATION OF TRUST ESTATE; CUSTODY OF RECEIVABLE FILES; REPRESENTATIONS REGARDING
RECEIVABLES; DISCHARGE..............................................................................18
Section 2.01. Creation of Trust Estate..............................................................18
Section 2.02. Receivable Files......................................................................21
Section 2.03. Acceptance By Trustee.................................................................22
Section 2.04. Reacquisition of Receivables Upon Breach..............................................22
Section 2.05. Duties of Trustee with Respect to the Receivable Files................................23
Section 2.06. RESERVED..............................................................................24
Section 2.07. Satisfaction and Discharge of Indenture...............................................24
Section 2.08. Application of Trust Money............................................................24
ARTICLE III ADMINISTRATION OF RECEIVABLES.......................................................................25
Section 3.01. Duties of the Verification Agent and the Trustee......................................25
Section 3.02. Monthly REMIC Servicer Report; Payment Date Report....................................27
Section 3.03. Annual Statement as to Compliance; Notice of Default..................................28
Section 3.04. Verification Agent Duties; Periodic Accountants' Report...............................29
Section 3.05. Access to Certain Documentation and Information.......................................32
Section 3.06. Reports to Noteholders and the Rating Agency..........................................33
Section 3.07. Tax Treatment.........................................................................33
ARTICLE IV THE ACCOUNTS; PAYMENTS; STATEMENTS TO NOTEHOLDERS...................................................34
Section 4.01. Accounts..............................................................................34
Section 4.02. Collections...........................................................................34
Section 4.03. Additional Deposits...................................................................35
Section 4.04. Allocations and Payments..............................................................36
Section 4.05. Reserve Account.......................................................................38
Section 4.06. Note Payment Account..................................................................38
Section 4.07. Statements to Noteholders.............................................................39
Section 4.08. Securities Accounts...................................................................39
Section 4.09. Notice of Adverse Claims..............................................................42
ARTICLE V [RESERVED]..........................................................................................42
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ARTICLE VI THE NOTES...........................................................................................42
Section 6.01. The Notes.............................................................................42
Section 6.02. Authentication and Delivery of the Notes..............................................43
Section 6.03. Registration of Transfer and Exchange of Notes........................................43
Section 6.04. Mutilated, Destroyed, Lost or Stolen Notes............................................47
Section 6.05. Persons Deemed Owners.................................................................48
Section 6.06. Access to List of Noteholders' Names and Addresses....................................48
Section 6.07. Surrendering of Notes.................................................................48
Section 6.08. Maintenance of Office or Agency.......................................................49
Section 6.09. Interest Calculations; Interest Payments..............................................49
Section 6.10. Payments of Principal and Reborrowings during the Funding Period......................49
Section 6.11. Purchases of Additional Receivables during Funding Period.............................49
Section 6.12. Asset-Based Receivables...............................................................50
ARTICLE VII THE ISSUER..........................................................................................51
Section 7.01. Representations, Warranties and Certain Covenants of Issuer...........................51
Section 7.02. Repayment in Respect of Receivables Upon Breach.......................................56
Section 7.03. Liability of Issuer; Indemnities......................................................57
Section 7.04. Merger or Consolidation of, or Assumption of the Obligations of, the Issuer;
Certain Limitations...................................................................58
Section 7.05. RESERVED..............................................................................60
Section 7.06. Issuer May Not Own Notes..............................................................60
Section 7.07. Covenants of Issuer...................................................................60
ARTICLE VIII OAC.................................................................................................65
Section 8.01. Liability of OAC; Indemnities.........................................................65
Section 8.02. Merger or Consolidation of, or Assumption of the Obligations of OAC...................66
ARTICLE IX EVENTS OF DEFAULT; REMEDIES.........................................................................67
Section 9.01. Events of Default.....................................................................67
Section 9.02. Acceleration of Maturity; Rescission and Annulment....................................70
Section 9.03. Collection of Indebtedness and Suits for Enforcement by Trustee.......................71
Section 9.04. Remedies..............................................................................71
Section 9.05. Trustee May File Proofs of Claim......................................................72
Section 9.06. Trustee May Enforce Claims without Possession of Notes................................72
Section 9.07. Application of Money Collected........................................................73
Section 9.08. Limitation on Suits...................................................................73
Section 9.09. Unconditional Rights of Noteholders to Receive Principal and Interest.................73
Section 9.10. Restoration of Rights and Remedies....................................................74
Section 9.11. Rights and Remedies Cumulative........................................................74
Section 9.12. Delay or Omission Not Waiver..........................................................74
Section 9.13. Control by Majority Noteholders.......................................................74
Section 9.14. Waiver of Past Defaults...............................................................75
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Section 9.15. Undertaking for Costs.................................................................75
Section 9.16. Waiver of Stay or Extension Laws......................................................75
Section 9.17. Sale of Trust Estate..................................................................75
Section 9.18. Action on Notes.......................................................................77
Section 9.19. No Recourse to Other Trust Estates or Other Assets of the Issuer......................77
ARTICLE X THE TRUSTEE.........................................................................................77
Section 10.01. Duties of Trustee.....................................................................77
Section 10.02. Trustee's Certificate.................................................................79
Section 10.03. Trustee's Release of Removed Receivables..............................................79
Section 10.04. Certain Matters Affecting the Trustee.................................................79
Section 10.05. Limitation on Trustee's Liability.....................................................81
Section 10.06. Trustee May Own Notes.................................................................82
Section 10.07. Trustee's Fees and Expenses...........................................................82
Section 10.08. Indemnity of Trustee..................................................................82
Section 10.09. Eligibility Requirements for Trustee..................................................83
Section 10.10. Resignation or Removal of Trustee.....................................................83
Section 10.11. Successor Trustee.....................................................................84
Section 10.12. Merger or Consolidation of Trustee....................................................84
Section 10.13. Appointment of Co-Trustee or Separate Trustee.........................................85
Section 10.14. Representations and Warranties of Trustee.............................................86
Section 10.15. Tax Returns...........................................................................87
ARTICLE XI REDEMPTION..........................................................................................87
Section 11.01. Redemption at the Option of the Issuer; Election to Redeem............................87
Section 11.02. Deposit of Redemption Amount..........................................................87
Section 11.03. Notice of Redemption by the Trustee...................................................88
Section 11.04. Payment and Surrendering of Notes.....................................................88
ARTICLE XII MISCELLANEOUS PROVISIONS............................................................................88
Section 12.01. Amendment.............................................................................88
Section 12.02. Protection of Security Interest in Trust Estate......................................90
Section 12.03. Limitation of Rights of Noteholders...................................................91
Section 12.04. Governing Law.........................................................................91
Section 12.05. Notices...............................................................................92
Section 12.06. Severability of Provisions; Counterparts..............................................92
Section 12.07. Assignment............................................................................92
Section 12.08. No Petition...........................................................................92
Section 12.09. Noteholder Direction..................................................................93
Section 12.10. No Substantive Review of Compliance Documents.........................................93
Section 12.11. Prevention of Trading of Notes........................................................93
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Exhibit A Form of Monthly REMIC Servicer Report
Exhibit B Trustee's Certificate
Exhibit C Form of Fixed Rate Note
Exhibit D Transferee Certificates
Exhibit E Form of Funding Date Report
Exhibit F Form of Payment Date Report
Exhibit I Form of Trust Certification
Schedule 1-A List of Initial Asset-Based REMIC Trusts
Schedule 1-B List of Initial Series-Based REMIC Trusts
Schedule 2 List of all REMIC Pooling Agreements and all Amendments and
Supplements thereto
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This Indenture, dated as of September 28, 2001 (the "Indenture") is
executed by and among Oakwood Advance Receivables Company, L.L.C., as issuer
(the "Issuer"), The Chase Manhattan Bank, as trustee (in such capacity, the
"Trustee"), as verification agent (the "Verification Agent") and as paying
agent (the "Paying Agent"), and Oakwood Acceptance Corporation, together with
any successor entity, individually ("OAC") and as servicer of the REMIC Trusts
(the "REMIC Servicer").
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and the Noteholders to
the extent provided herein:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS.
Except as otherwise provided in this Indenture, whenever used herein,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Accounts" means the Collection Account, the Reserve Account and the
Note Payment Account.
"Additional Receivables" means all receivables created as a result of
the Seller's making P&I Advances pursuant to a REMIC Pooling Agreement during
the Funding Period. Any receivables created at any time with respect to a REMIC
Trust with respect to which OAC no longer acts at such time as REMIC Servicer
shall not constitute Additional Receivables. The Additional Receivables to be
funded on any Funding Date shall be included in the list of Receivables
reported in the related Funding Date Report as provided in Section 6.11 hereof.
"Adverse Claim" means a lien, security interest, charge, encumbrance
or other right or claim of any Person.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control," when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the term "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Receivables" means all Initial Receivables and all
Receivables under Designated REMIC Trusts contributed by the Seller to the
Issuer under the Receivables Contribution Agreement.
"Applicants" shall have the meaning specified in Section 6.06.
"Asset" shall have the meaning assigned to such term in the respective
REMIC Pooling Agreements.
"Asset-Based Net Proceeds Coverage Percentage" means, for any
Collection Period, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Net Proceeds received by the Trustee during
such Collection Period attributable to Asset-Based Receivables, and the
denominator of which is the highest aggregate Receivables Balance of all
Asset-Based Receivables in the Trust Estate at any date during such Collection
Period.
"Asset-Based Receivable" means a Receivable related to a P&I Advance
made with respect to an Asset-Based REMIC Trust.
"Asset-Based Receivables Acceptance Date" shall mean, for any
Asset-Based REMIC Trust, the date, if any, on which the Issuer and OAC shall
have received a written instrument signed by the Majority Noteholders
confirming that the Majority Noteholders are satisfied that the REMIC Servicer
is able to report and track the funding and reimbursement of P&I Advances with
respect to such Asset-Based REMIC Trust accurately, on an Asset-by-Asset basis.
"Asset-Based REMIC Trust" means a REMIC Trust for which, pursuant to
the related REMIC Pooling Agreement, the determination as to whether P&I
Advance Reimbursement Amounts related to such P&I Advance have been recovered
is made on an Asset-by-Asset basis. The Asset-Based REMIC Trusts as of the
Closing Date are listed on Schedule 1-A attached hereto.
"Available Funds" means, with respect to any Payment Date, all funds
on deposit in the Collection Account as of the close of business on the last
day of the preceding Collection Period; plus all funds deposited into the Note
Payment Account on such Payment Date pursuant to Section 4.05(d).
"Benefit Plan" means with respect to any Person any employee benefit
plan as defined in Section 3(3) of ERISA in respect of which the Person or any
ERISA Affiliate of such Person is, or at any time during the immediately
preceding six years was, an "employer" as defined in Section 3(5) of ERISA.
"Business Day" means any day other than a Saturday, a Sunday, or a day
on which banking institutions in the State of New York, the State of North
Carolina or the State of Nevada are required or authorized by law, regulation,
executive order or governmental decree to be closed.
"Certificate Account" shall have the meaning assigned to such term in
the respective REMIC Pooling Agreements.
"Certificate of Formation" means the Certificate of Formation of the
Issuer.
"Clearing Corporation" shall have the meaning given such term in
Section 8-102(a)(5) of the UCC.
"Closing Date" means October 2, 2001.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Collateral Balance" means, on any date, the sum of (a) the product of
(i) the outstanding Receivables Balance of the Asset-Based Receivables in the
Trust Estate, and (ii) 0.90, and (b) the product of (i) the outstanding
Receivables Balance of the Series-Based Receivables in the Trust Estate, and
(ii) 0.99; provided, that any Receivable as to which a breach of representation
or warranty made by the Seller in the Receivables Contribution Agreement has
occurred and not been cured shall have a Collateral Balance of zero.
"Collateral Requirement" means, on any date, the requirement that the
sum of (1) the Collateral Balance plus (2) the amount of cash then on deposit
in the Collection Account and the Note Payment Account, shall be greater than
the Fixed Rate Note Balance as of the opening of business on such date (after
giving effect to any required payments on such date, if any).
"Collection Account" means the segregated account or accounts, each of
which shall be an Eligible Account, established and maintained pursuant to
Section 4.01 and entitled "The Chase Manhattan Bank, as Trustee under the
Indenture dated as of September 28, 2001 among Oakwood Advance Receivables
Company, L.L.C., The Chase Manhattan Bank, as Trustee, as Verification Agent
and as Paying Agent, and Oakwood Acceptance Corporation, Collection Account."
"Collection Period" means, with respect to any Payment Date, the
calendar month preceding the calendar month in which the Payment Date occurs,
except that with respect to the Initial Payment Date, the Collection Period
shall begin on the Closing Date and end on September 30, 2001.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at 450 W. 33rd Street, New York, New York 10001, Attn: Institutional
Trust Services - OAC Advance Receivables Backed Notes, Series 2001-ADV.
"Custodian" shall have the meaning specified in Section 2.05(a).
"Default Rate" means the Fixed Rate plus 2.00% per annum.
"Designated REMIC Trust" shall have the meaning assigned to such term
in the Receivables Contribution Agreement.
"Discount Factor" means with respect to Asset-Based Receivables, 90%,
and with respect to Series-Based Receivables, 99%.
"Eligible Account" means (A) a segregated account or accounts
maintained with an institution the deposits of which are insured by the Bank
Insurance Fund or the Savings Association Insurance Fund of the FDIC, the
unsecured and uncollateralized debt obligations of which shall be rated "AA" or
"Aa2" or better by the Rating Agency then providing a long term debt rating for
such institution and in the highest available short term rating category by the
Rating Agency then providing a short term debt rating for such institution, and
that is (i) a federal savings and loan association duly organized, validly
existing and in good standing under the federal banking laws, (ii) a banking or
savings and loan association duly organized, validly existing and in good
standing under the applicable laws of any state, (iii) a national banking
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association duly organized, validly existing and in good standing under the
federal banking laws, or (iv) a principal subsidiary of a bank holding company,
or (B) a segregated trust account (which shall be a "special deposit account")
maintained in the trust department of a federal or state chartered depository
institution or trust company, having capital and surplus of not less than
$50,000,000, acting in its fiduciary capacity. Any Eligible Accounts maintained
with the Trustee shall conform to the preceding clause (B).
"Employee Benefit Plan" shall have the meaning specified in Section
6.01(i).
"Entitlement Order" shall have the meaning given such term in Section
8-102(a)(8) of the UCC.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" means with respect to any Person (a) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as such Person; (b) a trade or business
(whether or not incorporated) under common control (within the meaning of
Section 414(c) of the Code) with such Person, or (c) a member of the same
affiliated service group (within the meaning of Section 414(m) of the Code) as
such Person, any corporation described in clause (a) above or any trade or
business described in clause (b) above.
"Event of Default" shall have the meaning specified in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FDIC" means the Federal Deposit Insurance Corporation, and its
successors.
"Final Payment Date" shall mean the earliest of (i) the Stated
Maturity Date, (ii) after the end of the Funding Period, the Payment Date on
which the Note Balance has been reduced to zero, or (iii) the Payment Date
which follows the Payment Date on which all proceeds of a sale of the Trust
Estate were distributed pursuant to Section 9.17(d).
"Financial Asset" shall have the meaning assigned to such term in
Section 8-102(a)(9) of the UCC.
"Fixed Rate" means 5.262% per annum.
"Fixed Rate Note" means one of the OAC Advance Receivables Backed
Notes, Series 2001-ADV executed by the Issuer and authenticated by the Trustee
in substantially the form attached hereto as Exhibit C.
"Fixed Rate Note Balance" means the Initial Fixed Rate Note Balance
less all amounts paid to Holders of the Fixed Rate Notes and applied in
reduction of the Fixed Rate Note Balance.
"FNMA" means Fannie Mae, and its successors.
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"Flow-Through Entity" means any partnership, limited liability
company, S corporation, grantor trust, or any other "flow-through entity"
(within the meaning of United States Treasury Regulations Section
1.7704-1(h)(3)) which may directly or indirectly acquire any Notes.
"Funding Account" shall have the meaning specified in Section 4.02(a).
"Funding Amount" means the cash amount disbursed to the Issuer or the
Issuer's designee with respect to any Receivable on the related Funding Date,
which amount shall be equal to the product of the Receivable Balance of such
Receivable and the related Discount Factor, to the extent the disbursement of
such Funding Amount would not result in the aggregate outstanding Collateral
Balance attributable to Receivables in respect of which the Funding Amount has
been paid, exceeding the initial Fixed Rate Note Balance.
"Funding Conditions" shall mean, with respect to any proposed Funding
Date, (i) no breach of representation, warranty or covenant of the Seller, OAC,
the Issuer or with respect to the Receivables hereunder or under the
Receivables Contribution Agreement shall exist or continue to exist, (ii) no
Event of Default, Funding Interruption Event or Funding Termination Event shall
have occurred and be continuing, (iii) OAC shall have provided the Trustee and
the Noteholders, no later than 11:00 AM Eastern time on such Funding Date, (A)
a Funding Date Report reporting information with respect to the Receivables in
the Trust Estate and demonstrating the satisfaction of the Collateral
Requirement, as required by Section 6.11(a) and (B) other related information
that the Trustee and/or the Majority Noteholders shall have reasonably
requested from OAC; (iv) as of each Funding Date, the Issuer and OAC shall not
be insolvent nor shall the Issuer have been made insolvent by such Grant nor
shall it be aware of any pending insolvency; (v) such Grant shall not result in
a material adverse tax consequence to the Trust Estate or the Noteholders; (vi)
the Funding Period shall not have terminated, and (vii) such Grant shall not
result in the Notes receiving a lower credit rating from the Rating Agency than
the rating that was obtained upon the Closing Date. In addition, it shall be a
Funding Condition for the first Funding Date following the closing of the
merger of Oakwood Acceptance Corporation with and into Oakwood Acceptance
Corporation, LLC, a Delaware limited liability company (the "Successor"), that
the Trustee shall have received one or more Opinions of Counsel to the
reasonable satisfaction of the Majority Noteholders to the effect that (1)the
Successor is duly organized, (2) the Successor has the power and authority to
perform the transactions contemplated by the Transaction Documents, (3) the
Successor has duly authorized, executed and delivered an assignment and
assumption agreement substantially in the form of Exhibit B attached to the
Receivables Contribution Agreement, (4) that the Transaction Documents are the
legal, valid and binding obligations of the Successor, enforceable against the
Successor in accordance with their respective terms, subject to customary
exceptions for bankruptcy, receivership, insolvency and other similar laws
affecting the rights of creditors, general principles of equity, and other
customary exceptions and assumptions of the same type as those taken in the
Opinions of Counsel delivered by counsel to OAC at the Closing Date, and (5)
that a financing statement, when filed with the Secretary of State of the State
of Delaware, will be sufficient to perfect the Issuer's security interest in
the Receivables, to the extent the transfer of any Receivables from the
Successor to the Issuer is recharacterized as a pledge rather than as a sale
and/or a contribution, subject to customary exceptions and assumptions of the
same type as those taken in the Opinions of Counsel delivered by counsel to OAC
at the Closing Date.
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"Funding Date" means any date during the Funding Period on which
amounts on deposit in the Collection Account, less the Required Expense Reserve
for the next upcoming Payment Date, are (or are to be) applied toward the
Funding Amount of Additional Receivables as contemplated by Section 6.11. In
the case of most Additional Receivables, it is expected that the Funding Date
will be the same date on which the related P&I Advances are made by OAC.
"Funding Date Report" means a report delivered by the REMIC Servicer
in respect of each Funding Date pursuant to Section 6.11(a), in substantially
the form of Exhibit E attached hereto.
"Funding Interruption Event" means the occurrence of an event which
with the giving of notice or the passage of time, or both, would constitute an
Event of Default.
"Funding Period" means the period of time which begins on the Closing
Date and which terminates upon the earlier to occur of (i) the Scheduled
Termination Date, and (ii) the occurrence of a Funding Termination Event.
"Funding Termination Event" means any of the following conditions or
events which is not waived by the Majority Noteholders:
(a) the occurrence of any Event of Default;
(b) the rating of the Notes shall be withdrawn or reduced below
"A" by the Rating Agency;
(c) a payment default under any indebtedness for borrowed money
of Oakwood Homes in excess of $10,000,000 which default (i) is not cured within
the time periods specified within the instruments creating or evidencing such
indebtedness, (ii) involves the failure to pay a matured obligation or (iii)
permits the present acceleration of the maturity of obligations;
(d) any REMIC Event of Default that is not cured or waived within
the time periods specified in the related REMIC Pooling Agreement;
(e) as of the close of business on any date, if the Collateral
Requirement is not satisfied;
(f) the redemption of the Notes in full pursuant to Section
11.01;
(g) OAC is terminated as REMIC Servicer under any of the REMIC
Trusts;
(h) as of the last day of any Collection Period commencing with
the Collection Period related to the seventh Payment Date, the (1) arithmetic
average of the Asset-Based Net Proceeds Coverage Percentage for such Collection
Period and the immediately preceding five Collection Periods shall be less than
9%, or (2) the arithmetic average of the Series-Based Net Proceeds Coverage
Percentage for such Collection Period and the immediately preceding five
Collection Periods shall be less than 80%; or
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(i) the Issuer fails to remit the Net Proceeds withdrawn by the
Issuer from the Certificate Accounts for the REMIC Trusts on any date to the
Collection Account within two (2) Business Days after the date the Issuer
withdrew such amounts.
"GAAP" means generally accepted accounting principles that are (i)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to
time, and (ii) consistently applied with past financial statements of Oakwood
Homes and its subsidiaries; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in
which such principles have been properly applied.
"Grant[ed]" means pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create and grant a lien upon and a security
interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture. A Grant of collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of such collateral or other agreement or
instrument and all other moneys payable thereunder, to give and receive notices
and other communications, to make waivers or other agreements, to exercise all
rights and options, to bring proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Gross Proceeds" means for any date all of the P&I Advance
Reimbursement Amounts withdrawn by the Issuer from the Certificate Accounts for
each of the REMIC Trusts pursuant to each of the related REMIC Pooling
Agreements on such date.
"Holder" shall mean Noteholder.
"Indenture" means this Indenture, relating to the OAC Advance
Receivables Backed Notes, Series 2001-ADV dated as of September 28, 2001 among
Oakwood Advance Receivables Company, L.L.C., as Issuer, The Chase Manhattan
Bank, as Trustee, as Verification Agent and as Paying Agent, and Oakwood
Acceptance Corporation, individually and as REMIC Servicer, as the same may be
amended or supplemented from time to time.
"Initial Asset-Based Receivables" shall have the meaning assigned to
such term in the Receivables Contribution Agreement.
"Initial Fixed Rate Note Balance" means $50,000,000.00.
"Initial Noteholders" means The Prudential Insurance Company of
America, ABS Fund, and Norwest Bank Minnesota, N.A., as Trustee for Norwest
Stable Return Fund.
"Initial Payment Date" means November 7, 2001.
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"Initial Receivables" means the receivables as of the Closing Date
contributed by the Seller to the Issuer on the Closing Date pursuant to the
Receivables Contribution Agreement and Granted by the Issuer to the Trust
Estate, and which consist of receivables arising from the making by the REMIC
Servicer of P&I Advances with respect to the Series-Based REMIC Trusts listed
on Schedule 1-B attached hereto, and which receivables are in existence on the
Closing Date.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in
an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or the filing of a petition against
such Person in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, which case remains unstayed or
undismissed within 60 days of such filing, or the appointing of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or the ordering of the
winding-up or liquidation of such Person's business; or (b) the commencement by
such Person of a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by such Person to
the entry of an order for relief in an involuntary case under any such law, or
the consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors,
or the failure by such Person generally to pay its debts as such debts become
due or the admission by such Person of its inability to pay its debts generally
as they become due.
"Insolvency Proceeding" means any proceeding of the sort described in
the definition of Insolvency Event.
"Interest Carryover Shortfall" means, with respect to any Payment
Date, the excess of (i) the sum of (a) the Interest Distributable Amount for
the Notes for such Payment Date and (b) without duplication, any unpaid
Interest Carryover Shortfall for any preceding Payment Date, plus interest
thereon accrued from the preceding Payment Date to the current Payment Date at
the Default Rate, over (ii) the amount of interest, if any, actually paid to
Noteholders on such Payment Date.
"Interest Distributable Amount" means, with respect to any Payment
Date and for the related Interest Distribution Period for the Fixed Rate Notes,
an amount equal to (x) the Fixed Rate times (y) the Fixed Rate Note Balance
immediately prior to such Payment Date (or with respect to the first Payment
Date, as of the Closing Date) times (z) one-twelfth (1/12) (or with respect to
the first Payment Date a fraction, the numerator of which is the actual number
of days elapsed during the related Interest Distribution Period and the
denominator of which is 360).
"Interest Distribution Period" means, with respect to the Initial
Payment Date, the period of time from the Closing Date to the day preceding the
Initial Payment Date, and with respect to any other Payment Date, from the
immediately preceding Payment Date to the day preceding such Payment Date. Each
Interest Distribution Period after the initial Interest Distribution Period
shall be deemed to consist of 30 days and for the initial Interest Distribution
Period such Interest
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Distribution Period shall consist of the actual number of days and a year
assumed to consist of 360 days.
"Interested Noteholders" shall mean any Noteholder holding Notes
evidencing not less than 25% of the Voting Interests.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Issuer" means Oakwood Advance Receivables Company, L.L.C., in its
capacity as issuer of the Notes pursuant to this Indenture, and each successor
thereto (in the same capacity) pursuant to Section 7.04.
"Issuer Affiliate" means any person involved in the organization or
operation of the Issuer or an affiliate of such a person within the meaning of
Rule 3a-7 of the Investment Company Act.
"Lien" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind.
"Majority Noteholders" means the Noteholders holding Voting Interests
of at least 51% of all outstanding Voting Interests.
"Monthly REMIC Servicer Report" means a report delivered by the REMIC
Servicer as described in Section 3.02(a), containing such information
substantially in the format attached hereto as Exhibit A, which shall be
delivered in the form of one or more electronic files.
"Net Proceeds" means, for any date, Gross Proceeds minus Seller
Proceeds.
"Note Balance" means, as of any date, the Fixed Rate Note Balance as
of such date.
"Note Payment Account" means the segregated account or accounts, each
of which shall be an Eligible Account, established and maintained pursuant to
Section 4.01 and entitled "The Chase Manhattan Bank, as Trustee in trust for
the Noteholders of the OAC Advance Receivables Backed Notes, Series 2001-ADV,
Note Payment Account."
"Note Purchase Agreement" means the Note Purchase Agreement signed by
the Initial Noteholders, OAC and the Issuer.
"Note Register" means the register maintained pursuant to Section
6.03.
"Note Registrar" means the Trustee unless a successor thereto is
appointed pursuant to Section 6.03. The Note Registrar initially designates its
offices as the Corporate Trust Office for purposes of Section 6.08.
"Noteholder" means the Person in whose name a Note is registered in
the Note Register, except that, solely for the purposes of giving certain
consents, waivers, requests or demands pursuant to this Indenture, the
interests evidenced by any Note registered in the name of, or in the name of a
Person or entity holding for the benefit of, the Issuer, the Seller or any
Person that
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is an Affiliate of either or both of the Issuer and the Seller, shall not be
taken into account in determining whether the requisite percentage necessary to
effect any such consent, waiver, request or demand shall have been obtained.
The Trustee shall have no liability for counting any Person as a Noteholder
unless a Responsible Officer of the Trustee has actual knowledge that such
Person is an Affiliate of either or both of the Issuer and Seller.
"Notes" means the Fixed Rate Notes.
"OAC" means Oakwood Acceptance Corporation, a North Carolina
corporation, and any successor thereto, including, without limitation, Oakwood
Acceptance Corporation, LLC, a Delaware limited liability company, when and if
the merger described in Section 4(r) of the Receivables Contribution Agreement
is consummated.
"Oakwood Homes" means Oakwood Homes Corporation, the parent of OAC.
"Obligor" on a Mortgage Loan means any Person who owes or may be
liable for payments under such Mortgage Loan.
"Officer's Certificate" means a certificate signed by a Responsible
Officer of the Issuer or OAC, as the case may be, and delivered to the Trustee.
"Operating Agreement" means the operating agreement of Oakwood Advance
Receivables Company, L.L.C., dated as of September 28, 2001.
"Opinion of Counsel" means a written opinion of counsel, who may be
(unless otherwise specified herein) an employee of or outside counsel to the
Person responsible for providing such opinion, and which opinion shall be
reasonably acceptable to the Trustee and the other recipients thereof.
"Optional Termination Date " means the Payment Date immediately
following a Payment Date on which the Note Balance is less than 10% of the
Initial Fixed Rate Note Balance.
"P&I Advance" shall have the meaning assigned to such term in the
respective REMIC Pooling Agreements, as amended.
"P&I Advance Reimbursement Amount" shall have the meaning assigned to
such term in the respective REMIC Pooling Agreements, as amended.
"Paying Agent" means The Chase Manhattan Bank, as paying agent.
"Payment Date" means, in any month, the 7th day of such month or, if
such 7th day is not a Business Day, the next Business Day following such 7th
day.
"Payment Date Report" means the report prepared and delivered by the
REMIC Servicer pursuant to Section 3.02(b) for each Payment Date, reporting the
amounts of all payments to be made on that Payment Date pursuant to Section
4.04(b), in substantially the form of Exhibit F attached hereto.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
Person succeeding to the functions thereof.
"Permitted Investments" means, at any time, any one or more of the
following obligations and securities:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United
States or any agency or instrumentality thereof, provided
that such obligations are backed by the full faith and credit
of the United States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than three months from the date of
acquisition thereof, provided that the short-term unsecured
debt obligations of the party agreeing to repurchase such
obligations are at the time rated by the Rating Agency in its
highest short-term rating category (which is "A-1+" for S&P);
(iii) certificates of deposit, time deposits and bankers'
acceptances of any U.S. depository institution or trust
company incorporated under the laws of the United States or
any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that
the unsecured short-term debt obligations of such depository
institution or trust company at the date of acquisition
thereof have been rated by the Rating Agency in its highest
unsecured short-term debt rating category;
(iv) commercial paper (having original maturities of not more than
90 days) of any corporation incorporated under the laws of
the United States or any state thereof which on the date of
acquisition has been rated by the Rating Agency in its
highest short-term rating categories;
(v) short term investment funds ("STIFS") sponsored by any trust
company or national banking association incorporated under
the laws of the United States or any state thereof which on
the date of acquisition has been rated by the Rating Agency
in its highest rating category of long term unsecured debt;
(vi) interests in any money market fund which at the date of
acquisition of the interests in such fund including any such
fund that is managed by the Trustee or an Affiliate of the
Trustee or for which the Trustee or an Affiliate acts as
advisor and throughout the time as the interest is held in
such fund has a rating of "AAA" by the Rating Agency; and
(vii) other obligations or securities that are acceptable to the
Rating Agency as a Permitted Investment hereunder and will
not result in a reduction in the then current rating of the
Notes, as evidenced by a letter to such effect from such
Rating Agency and with the written consent of the Majority
Noteholders.
provided that each of the foregoing investments above shall mature no later
than the Business Day prior to the Payment Date immediately following the date
of purchase thereof (other than in
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the case of the investment of monies in instruments of which the Trustee is the
obligor, which may mature on the related Payment Date), and shall be required
to be held to such maturity; and provided further, that each of the Permitted
Investments may be purchased by the Trustee through an Affiliate of the
Trustee.
Permitted Investments are only those which are acquired by the Trustee
in its name and in its capacity as Trustee, and with respect to which (a) the
Trustee has noted its interest therein on its books and records, and (b) the
Trustee has purchased such investments for value without notice of any adverse
claim thereto (and, if such investments are securities or other financial
assets or interests therein, within the meaning of Section 8-102 of the UCC,
without acting in collusion with a Securities Intermediary in violating such
Securities Intermediary's obligations to entitlement holders in such assets,
under Section 8-504 of the UCC, to maintain a sufficient quantity of such
assets in favor of such entitlement holders), and (c) either (i) such
investments are in the possession of the Trustee or (ii) such investments, (A)
if certificated securities and in bearer form, have been delivered to the
Trustee, or in registered form, have been delivered to the Trustee and either
registered by the issuer in the name of the Trustee or endorsed by effective
endorsement to the Trustee or in blank; (B) if uncertificated securities, the
ownership of which has been registered to the Trustee on the books of the
issuer thereof (or another person, other than a Securities Intermediary, either
becomes the registered owner of the uncertified security on behalf of the
Trustee or, having previously become the registered owner, acknowledges that it
holds for the Trustee); or (C) if Securities Entitlements representing
interests in securities or other financial assets (or interests therein) held
by a Securities Intermediary, a Securities Intermediary indicates by book entry
that a security or other financial asset has been credited to the Trustee's
Securities Account with such Securities Intermediary. No instrument described
hereunder may be purchased at a price greater than par, if such instrument may
be prepaid or called at a price less than its purchase price prior to its
stated maturity.
"Person" means any legal person, including any individual,
corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Placement Agent" means Credit Suisse First Boston Corporation.
"Principal Distributable Amount" means, with respect to any Payment
Date, an amount equal to the Available Funds remaining after payment of amounts
required to be paid pursuant to subsections (i), (ii) and (iii) of Section
4.04(b), and which shall be payable only as required by Section 4.04(b)(iv).
"Purchaser" means Oakwood Advance Receivables Company, L.L.C., in its
capacity as transferee of the Receivables under the Receivables Contribution
Agreement.
"Qualified Institutional Buyer" has the meaning assigned to such term
in Rule 144A under the Securities Act.
"Rating Agency" means Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc.
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"Receivable" means the contractual right to reimbursement from a REMIC
Trust for a P&I Advance made by OAC as REMIC Servicer in connection with such
REMIC Trust, which P&I Advance has not previously been reimbursed, and which
contractual right to reimbursement has been Granted to the Trust Estate by the
Issuer hereunder, and including all rights of OAC to enforce payment of such
obligation under the related REMIC Pooling Agreement, consisting of the Initial
Receivables and all Additional Receivables.
"Receivable Balance" means as of any date of determination and with
respect to a Receivable the outstanding amount of such Receivable.
"Receivable File" means the documents described in Section 2.02(a) and
(b) pertaining to a particular Receivable.
"Receivables Contribution Agreement" means the Receivables
Contribution Agreement, dated as of September 28, 2001, between the Seller and
the Purchaser.
"Record Date" means, with respect to each Payment Date, the last
Business Day of the calendar month immediately preceding such Payment Date. Any
amount stated "as of a Record Date" or "on a Record Date" shall give effect to
all applications of collections, and all payments to any party under this
Indenture or to the related Obligor, as the case may be, in each case as
determined as of the opening of business of the Note Registrar on the related
Record Date.
"Redemption Amount" means, with respect to a redemption of the Notes
by the Issuer pursuant to Section 11.01, an amount, which when applied pursuant
to Section 4.04(b), shall be sufficient to pay an amount equal to the sum of
(i) the Note Balance as of the date the Issuer elects to redeem the Notes, (ii)
all accrued and unpaid interest on the Notes through the end of the Interest
Distribution Period ending on the day prior to the Payment Date as of which
such redemption will occur, (iii) any and all amounts owing to the Trustee, the
Verification Agent and the Paying Agent from the Issuer pursuant to the terms
hereof, and (iv) any and all other amounts due and payable hereunder.
"Redemption Notice" shall have the meaning set forth in Section 11.03.
"Redemption Payment Date" shall have the meaning set forth in Section
11.01.
"Release Payment" means, with respect to any Removed Receivable in
respect of which a payment is required to be made by the Issuer or the Seller
under this Indenture and as of the Payment Date on which the "Release Payment"
must be made, all of the outstanding and unpaid balance of such Receivable as
of such Payment Date.
"REMIC Event of Default" shall mean an event of default under any
REMIC Pooling Agreement that is not cured or waived within the time periods
specified therein.
"REMIC Pooling Agreement" means each pooling and servicing agreement
pursuant to which the related REMIC Trust is formed, each as amended, modified
or supplemented from time to time and collectively referred to herein as the
"REMIC Pooling Agreements".
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"REMIC Servicer" means OAC in its capacity as servicer of the REMIC
Trusts and any successor servicer appointed thereunder.
"REMIC Trust" means any of the trusts listed on Schedule 1-A AND
SCHEDULE 1-B attached hereto, and such other trusts which may be added or
removed from time to time as provided in Section 2.01(f) hereof and
collectively referred to herein as the "REMIC Trusts"; PROVIDED, HOWEVER, THAT
NO ASSET-BASED REMIC TRUST SHALL BE INCLUDED AMONG THE "REMIC TRUSTS" FOR
PURPOSES HEREOF UNLESS AND UNTIL AN ASSET-BASED RECEIVABLES ACCEPTANCE DATE
SHALL HAVE OCCURRED FOR SUCH ASSET-BASED REMIC TRUST."
"REMIC Trust Remittance Report" means, for any REMIC Trust, the
monthly report(s) prepared by the related servicer and delivered to the related
REMIC Trustee.
"REMIC Trustee" means each trustee appointed under a REMIC Pooling
Agreement in connection with a REMIC Trust.
"Remittance Date" shall have the meaning assigned to such term in the
respective REMIC Pooling Agreements.
"Removed Receivable" means a Receivable in respect of which the Issuer
or the Seller is obligated to make a payment, pursuant to Section 2.04 or 7.02,
or in the event the Issuer has elected to make a redemption pursuant to Section
11.01, all of the Receivables.
"Required Expense Reserve" means, with respect to any Payment Date, an
amount equal to the aggregate of amounts required to be paid pursuant to
Section 4.04(b)(i)-(iii) on such Payment Date.
"Required Reserve Amount" means (x) for any Payment Date prior to the
Stepdown Date, 4% of the Fixed Rate Note Balance as of the Closing Date,
reduced by any amount paid to reduce such Fixed Rate Note Balance pursuant to
Section 6.12, and (y) for any Payment Date on or after the Stepdown Date, an
amount equal to the greater of (i) 2.5% of the Fixed Rate Note Balance as of
the Closing Date, reduced by any amount paid to reduce such Fixed Rate Note
Balance pursuant to Section 6.12, and (ii) 4% of the Fixed Rate Note Balance at
the opening of business on such Payment Date; provided, however, that if the
parties execute and deliver an amendment to this Indenture providing that no
Asset-Based Receivables may be included in the Trust Estate, then the
references to "4%" in clause (x) shall be automatically changed to "3%."
"Reserve Account" means the segregated account or accounts, each of
which shall be an Eligible Account, established and maintained pursuant to
Section 4.01 and entitled, "The Chase Manhattan Bank, as Trustee in trust for
the Noteholders of the OAC Advance Receivables Backed Notes, Series 2001-ADV,
Reserve Account."
"Reserve Fund Reimbursement Amount" means, with respect to any Payment
Date, the excess of the Required Reserve Amount over the amount then on deposit
in the Reserve Account.
"Responsible Officer" means,
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(i) When used with respect to the Trustee, the Verification Agent
or the Paying Agent, any officer or employee within the
Institutional Trust Services of the Trustee, the Verification
Agent or the Paying Agent, including any vice president,
assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Trustee, the
Verification Agent or the Paying Agent customarily performing
functions similar to those performed by any of the above
designated officers, in each case having direct
responsibility for the administration of this Indenture and
also, with respect to a particular matter, any other officer
or employee to whom such matter is referred because of such
officer's or employee's knowledge of and familiarity with
such particular subject, and
(viii) when used with respect to the Issuer, the Seller, OAC,
Oakwood Homes or the REMIC Servicer, the president, the chief
financial officer or any vice president of the Issuer, the
Seller, OAC, or the REMIC Servicer, as the case may be.
"Sale" means any sale of any portion of the Trust Estate.
"Schedule of Initial Receivables" means a schedule, which shall be
delivered and maintained in an electronic form, listing the Initial Receivables
conveyed to the Issuer under the Receivables Contribution Agreement and Granted
to the Trustee on the Closing Date, identifying such Receivables by REMIC
Trust, dollar amount of the related P&I Advance and, in the case of any
Asset-Based Receivables, related loan number and date of the related P&I
Advance.
"Schedule of Receivables" means, on any date, a schedule, which shall
be delivered and maintained in an electronic form, listing the outstanding
Receivables sold and/or contributed to the Issuer under the Receivables
Contribution Agreement and Granted to the Trustee, as updated from time to time
to list Additional Receivables Granted to the Trustee and deducting any amounts
paid against the Receivables as of such date, identifying such Receivables by
REMIC Trust, dollar amount of the related P&I Advance and, in the case of any
Asset-Based Receivables, related loan number and date of the related P&I
Advance.
"Scheduled Termination Date" means the Payment Date occurring in
August 2003.
"Securities Account" shall have the meaning given such term in Section
8-501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" shall have the meaning given such term in
Section 8-102(a)(14) of the UCC, and where appropriate, shall mean The Chase
Manhattan Bank or its successor, in its capacity as securities intermediary
pursuant to Section 4.08 hereof.
"Security Entitlement" shall have the meaning given such term in
Section 8-102(a)(17) of the UCC.
"Seller" means Oakwood Acceptance Corporation, in its capacity as
transferor of the Receivables under the Receivables Contribution Agreement.
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"Seller Proceeds" means for any date, that portion, if any, of the
related Gross Proceeds that consists of (1) P&I Advance Reimbursement Amounts
allocable to P&I Advances made by a Person other than OAC and (2) Receivables
not Granted to the Trust Estate because they were made after the termination of
the Funding Period.
"Series-Based Net Proceeds Coverage Percentage" means, for any
Collection Period, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Net Proceeds received by the Trustee during
such Collection Period attributable to Series-Based Receivables, and the
denominator of which is the highest aggregate Receivables Balance of all
Series-Based Receivables in the Trust Estate at any date during such Collection
Period.
"Series-Based Receivable" means a Receivable related to a P&I Advance
made with respect to a Series-Based REMIC Trust.
"Series-Based REMIC Trust" means a REMIC Trust for which, pursuant to
the related REMIC Pooling Agreement, the determination as to whether P&I
Advance Reimbursement Amounts related to such P&I Advance have been recovered
is made on a Series-by-Series basis. The Series-Based REMIC Trusts as of the
Closing Date are listed on Schedule 1-B attached hereto.
"Stated Maturity Date" means October 7, 2010.
"Stepdown Date" means the 24th Payment Date after termination of the
Funding Period.
"Subsequent Receivables" means all receivables created as a result of
P&I Advances made pursuant to the REMIC Pooling Agreements from and after the
Closing Date.
"Transaction Documents" means, collectively, this Indenture, the
Receivables Contribution Agreement, the Schedule of Receivables as amended,
modified or supplemented from time to time, the Notes, the Note Purchase
Agreement, the P&I Advance Disbursement and Purchase Administration Agreement,
of even date herewith, among OAC, the Issuer, the Trustee and The Chase
Manhattan Bank, as OAC's agent, and each of the other documents, instruments
and agreements entered into on the date hereof and thereafter in connection
with any of the foregoing or the transactions contemplated thereby.
"Transfer" shall have the meaning specified in Section 6.03(g). It is
expressly provided that the term "Transfer" in the context of the Notes
includes, without limitation, any distribution of the Notes by (i) a
corporation to its shareholders, (ii) a partnership to its partners, (iii) a
limited liability company to its members, (iv) a trust to its beneficiaries or
(v) any other business entity to the owners of the beneficial interests in such
entity.
"Transferee Agreement" shall have the meaning specified in Section
6.03(g).
"Transferee Certificate" means a certificate in the form of Exhibit D.
"Transferor Interest" means the Issuer's interest in the Receivables
the amount of which, as of any date of determination, shall equal the excess,
if any, of (i) the sum of (a) the Collateral
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Balance and (b) the amount in the Collection Account as of such date, over (ii)
the Note Balance as of such date.
"Transferor Interest Payment Report" shall have the meaning specified
in Section 4.02(c).
"Trust Estate" or "OAC Advance Receivables Backed Notes, Series
2001-ADV Trust Estate" means the trust estate established under this Indenture
for, the benefit of the Noteholders, which consists of the property described
in Section 2.01(a).
"Trust Property" means the property, or interests in property,
constituting the Trust Estate from time to time.
"Trustee" means The Chase Manhattan Bank, and any successor trustee
appointed pursuant to Section 10.11.
"Trustee Fee" means the fee payable to the Trustee on each Payment
Date for services rendered under this Indenture, which shall be equal to $2,300
per month. In addition, the Trustee shall be paid an initial fee of $5,000 on
the Closing Date.
"Trustee's Certificate" means a certificate completed and executed by
a Responsible Officer of the Trustee pursuant to Section 10.02 or 10.03,
substantially in the form attached hereto as Exhibit B.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
"United States" means the United States of America.
"Verification Agent" means The Chase Manhattan Bank or any successor
thereto.
"Voting Interests" means the aggregate voting power evidenced by the
Notes, corresponding to the outstanding Note Balance of the Notes held by
individual Noteholders; provided, however, that where the Voting Interests are
relevant in determining whether the vote of the requisite percentage of
Noteholders necessary to effect any consent, waiver, request or demand shall
have been obtained, the Voting Interests shall be deemed to be reduced by the
amount equal to the Voting Interests (without giving effect to this provision)
represented by the interests evidenced by any Note registered in the name of,
or in the name of a Person or entity holding for the benefit of, the Issuer,
the Seller or any Person that is an Affiliate of either or both of the Issuer
and the Seller. The Trustee shall have no liability for counting a Voting
Interest of any Person unless a Responsible Officer of the Trustee has actual
knowledge that such Person is an Affiliate of either or both of the Issuer and
the Seller.
SECTION 1.02. INTERPRETATION.
Unless otherwise indicated in this Indenture:
(a) reference to and the definition of any document (including
this Indenture) shall be deemed a reference to such document as it may be
amended or modified from time to time;
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(b) all references to an "Article," "Section," "Schedule" or
"Exhibit" are to an Article or Section hereof or to a Schedule or an Exhibit
attached hereto;
(c) defined terms in the singular shall include the plural and
vice versa and the masculine, feminine or neuter gender shall include all
genders;
(d) the words "hereof," "herein" and "hereunder" and words of
similar import when used in this Indenture shall refer to this Indenture as a
whole and not to any particular provision of this Indenture;
(e) in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding";
(f) periods of days referred to in this Indenture shall be
counted in calendar days unless Business Days are expressly prescribed and
references in this Indenture to months and years shall be to calendar months
and calendar years unless otherwise specified;
(g) accounting terms not otherwise defined herein and accounting
terms partly defined herein to the extent not defined, shall have the
respective meanings given to them under GAAP; and
(h) the headings in this Indenture are for the purpose of
reference only and do not limit or affect its meaning.
ARTICLE II
CREATION OF TRUST ESTATE; CUSTODY OF RECEIVABLE FILES; REPRESENTATIONS
REGARDING RECEIVABLES; DISCHARGE
SECTION 2.01. CREATION OF TRUST ESTATE.
(a) The Issuer hereby Grants to the Trustee at the Closing Date,
as trustee for the benefit of the Holders of the Notes, all of the Issuer's
right, title and interest in and to the following whether now existing or
hereafter created:
(i) all right, title and interest of the Issuer in and
to the Initial Receivables, the Initial Asset-Based
Receivables related to each Asset-Based REMIC Trust
on and as of the Asset-Based Receivables Acceptance
Date for such Asset-Based REMIC Trust, and any
Additional Receivables on the date they are acquired
by the Issuer, and all monies due thereon or paid
thereunder or in respect thereof (including, without
limitation, any proceeds of any Sales) on and after
the Closing Date, (including any Release Payments
made with respect to Removed Receivables for which a
payment is made by the Issuer or the Seller pursuant
to Sections 2.04 or 7.02);
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(ii) all rights of the Issuer as Purchaser under the
Receivables Contribution Agreement, including,
without limitation, to enforce the obligations of
the Seller thereunder with respect to the
Receivables;
(iii) the Collection Account, the Note Payment Account and
the Reserve Account, and all monies, "securities,"
"instruments," "accounts" "general intangibles,"
"chattel paper," "financial assets," "investment
property" (the terms in quotations are defined in
the UCC) and other property on deposit or credited
to the Collection Account (excluding investment
earnings thereon), the Note Payment Account
(excluding investment earnings thereon) and the
Reserve Account (excluding investment earnings
thereon) from time to time (whether or not
constituting or derived from payments, collections
or recoveries received, made or realized in respect
of the Receivables);
(iv) all right, title and interest of the Issuer as
assignee of the Seller to rights to payment on the
Receivables under each REMIC Pooling Agreement and
all related documents, instruments and agreements
pursuant to which the Seller acquired, or acquired
an interest in, any of the Receivables from each of
the REMIC Trusts;
(v) true and correct copies of all books, records and
documents relating to the Receivables in any medium,
including without limitation paper, tapes, disks and
other electronic media;
(vi) all other monies, securities, reserves and other
property now or at any time in the possession of the
Trustee or its bailee, agent or custodian and
relating to any of the foregoing; and
(vii) all present and future claims, demands, causes and
choses in action in respect of any and all of the
foregoing and all payments on or under, and all
proceeds of every kind and nature whatsoever in
respect of, any and all of the foregoing and all
payments on or under, and all proceeds of every kind
and nature whatsoever in conversion thereof,
voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, checks,
deposit accounts, rights to payment of any and every
kind, and other forms of obligations and
receivables, instruments and other property which at
any time constitute all or part of or are included
in the proceeds of any of the foregoing.
(b) The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally or ratably without prejudice, priority or distinction, to secure
all other amounts payable under this Indenture, and to secure compliance with
the provisions of this Indenture, all as provided in this Indenture. The
Trustee on behalf of the Holders of the Notes, acknowledges such Grant, accepts
the trust under
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this Indenture in accordance with the provisions hereof and agrees to perform
its duties as Trustee as required herein.
(c) The Issuer hereby irrevocably constitutes and appoints the
Trustee and any officer or agent thereof, effective upon the occurrence and
continuation of an Event of Default, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Issuer and in the name of such Issuer, for the
purpose of carrying out the terms of this Indenture, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Indenture and
the Receivables Contribution Agreement, and, without limiting the generality of
the foregoing, the Issuer hereby gives the Trustee the power and right (i) to
take possession of and endorse and collect any wired funds, checks, drafts,
notes, acceptances or other instruments for the payment of moneys due under any
Receivable Granted by the Issuer to the Trustee from the REMIC Trust or the
REMIC Servicer as the case may be, (ii) to file any claim or proceeding in any
court of law or equity or take any other action otherwise deemed appropriate by
the Trustee for the purpose of collecting any and all such moneys due from the
REMIC Trust or the REMIC Servicer under such Receivable whenever payable and to
enforce any other right in respect of any Receivable or related to the Trust
Estate, (iii) to direct the REMIC Trustee or the REMIC Servicer to make payment
of any and all moneys due or to become due under the Receivable directly to the
Trustee or as the Trustee shall direct, (iv) to ask or demand for, collect,
receive payment of and receipt for, any and all moneys, claims and other
amounts due or to become due from the REMIC Trust or the REMIC Servicer at any
time in respect of or arising out of any Receivable, (v) to sign and endorse
any assignments, notices and other documents in connection with the Receivables
or the Trust Estate, (vi) to sell, transfer, pledge and make any agreement with
respect to or otherwise deal with the Receivables and the Trust Estate as fully
and completely as though the Trustee were the absolute owner thereof for all
purposes, and do, at the Trustee's option and at the expense of the Issuer, at
any time, or from time to time, all acts and things which the Trustee deems
necessary to protect, preserve or realize upon the Receivable or the Trust
Estate and the Trustee's and the Issuer's respective security interests and
ownership interests therein and to effect the intent of this Indenture, all as
fully and effectively as the Issuer might do. Nothing contained herein shall in
any way be deemed to be a grant of power or authority to the Trustee or any
officer or agent thereof to take any of the actions described in this paragraph
with respect to any underlying Obligor under any Asset in any REMIC Trust for
which a P&I Advance was made.
(d) The parties hereto intend that the security interest granted
under this Indenture shall give the Trustee on behalf of the Noteholders a
first priority perfected security interest in, to and under the Receivables,
and all other property described in this Section 2.01 as a part of the Trust
Estate and all proceeds of any of the foregoing in order to secure the
obligations of the Issuer to the Trustee, the Noteholders under the Notes, this
Indenture, the Note Purchase Agreement, and all of the other Transaction
Documents. The Trustee on behalf of the Noteholders shall have all the rights,
powers and privileges of a secured party under the UCC. The Issuer agrees to
execute and file all filings (including filings under the UCC) and take all
other actions reasonably necessary in any jurisdiction to provide third parties
with notice of the security interest granted pursuant to this Indenture and to
perfect such security interest under the UCC.
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(e) The REMIC Pooling Agreements as of the Closing Date have been
amended to indicate that each Receivable is subject to the Trustee's security
interest. The Issuer shall cause any pooling and servicing agreement which may
subsequently be added as a REMIC Pooling Agreement to be amended or written
similarly to indicate the Trustee's security interest. These provisions
indicating the interest of the Trustee in the Receivables relating to a
particular REMIC Trust shall be deleted or modified when, and only when, the
related Receivables have been paid in full or have been released from the lien
hereof pursuant to this Indenture. In addition, each Funding Date Report and
Monthly REMIC Servicer Report shall include a list of the Receivables, and any
such list or related trial balance or Schedule of Receivables, and any other
list of the Receivables provided by the REMIC Servicer or the Issuer to any
third party shall include language indicating that the Receivables identified
therein are subject to the Trustee's security interest.
(f) Subject to the terms and conditions of Section 2(b) of the
Receivables Contribution Agreement, OAC may with the written consent of the
Majority Noteholders at any time (i) designate any trust as a Designated REMIC
Trust under the Receivables Contribution Agreement, whereupon such trust shall
become a "REMIC Trust" for purposes of this Indenture, and (ii) remove a REMIC
Trust as a Designated REMIC Trust under the Receivables Contribution Agreement,
whereupon such trust shall no longer constitute a "REMIC Trust" for purposes of
this Indenture (except that P&I Advances made in respect of such trust prior to
its removal shall continue to be part of the Trust Estate). The Issuer shall
promptly notify the Trustee and the Noteholders of such designation or removal.
SECTION 2.02. RECEIVABLE FILES.
(a) The Trustee agrees to hold in trust on behalf of the
Noteholders, upon the execution and delivery of this Indenture, the following
documents relating to each Receivable, with no responsibility to ensure the
validity or sufficiency of such Receivables:
(i) a copy of the related REMIC Pooling Agreement and
each amendment and modification thereto;
(ii) copy of the Monthly REMIC Servicer Reports in
electronic form listing the current outstanding
balance of the Receivables Granted to the Trust
Estate; and
(iii) a copy of each Funding Date Report delivered by the
REMIC Servicer, which shall be maintained in
electronic format.
(b) To reduce administrative costs, the Trustee, on behalf of the
Noteholders, upon the execution and delivery of this Indenture, appoints OAC,
and OAC accepts such appointment, to act as the agent of the Trustee as
custodian for the benefit of the Noteholders of the following documents
relating to each Receivable:
(i) any documents other than those identified in Section
2.02(a) received from or made available by the
related REMIC Trust in respect of such Receivable;
and
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(ii) any and all other documents that the Issuer or OAC,
as the case may be, shall keep on file, in
accordance with its customary procedures, relating
to such Receivable or the related REMIC Trust.
In the event OAC is terminated or resigns as the REMIC Servicer, it
will immediately upon such termination or resignation, as applicable, deliver
all documents held by it hereunder to the Trustee or the successor REMIC
Servicer.
(c) Within 30 days of the Closing Date, OAC shall provide to the
Trustee a copy of the REMIC Pooling Agreement and any separate asset conveyance
documentation and servicing agreement, and REMIC Trust Remittance Reports
prepared by REMIC Trustees pursuant to the REMIC Pooling Agreements over the 24
months preceding the month in which the Closing Date occurs, with respect to
each REMIC Trust. In addition, immediately following the addition of a new
Designated REMIC Trust, OAC shall provide to the Trustee a complete set of the
documents referred to above for such new Designated REMIC Trust. Within five
Business Days of receipt of such documents, the Trustee shall provide a
certification in substantially the form attached hereto as Exhibit I
acknowledging its receipt and possession of each of the REMIC Pooling
Agreements and all amendments and supplements thereto listed on Schedule 2
attached hereto. OAC represents and warrants that Schedule 2 is a complete and
accurate list of all such amendments and supplements. The Trustee shall make
such documents available to the Noteholders, at the expense of such
Noteholders, upon reasonable notice of any such Noteholder's request therefor.
SECTION 2.03. ACCEPTANCE BY TRUSTEE.
The Trustee hereby acknowledges its acceptance, on behalf of the
Noteholders, pursuant to this Indenture, of the security interest in the
Receivables and the other Trust Property Granted by the Issuer pursuant to this
Indenture, and declares and shall declare from and after the date hereof that
the Trustee, on behalf of the Noteholders, holds and shall hold such Trust
Property, pursuant to the trusts set forth in this Indenture.
SECTION 2.04. REACQUISITION OF RECEIVABLES UPON BREACH.
Upon discovery by the Issuer or upon the actual knowledge of a
Responsible Officer of the Trustee or a Noteholder of a breach of any of the
representations and warranties of the Seller set forth in Section 4(aa) of the
Receivables Contribution Agreement, the party discovering such breach shall
give prompt written notice to the others. If such breach has or would have a
material adverse effect on the rights or interests of the Noteholders with
respect to all or a portion of the Receivables, then, unless such breach and
the resulting impairment shall have been cured within 30 days after the earlier
to occur of the discovery of such breach by the Issuer or receipt by the Issuer
of written notice of such breach, such that the relevant representation and
warranty shall be true and correct in all material respects as if made on such
day, and the Issuer shall have delivered to the Trustee and each Noteholder an
Officer's Certificate describing the nature of such breach and the manner in
which the relevant representation and warranty became true and correct, the
Issuer shall pay the Release Payment with respect to the affected Receivable(s)
to the Collection Account on the first Business Day after the expiration of
such 30-day period. This repurchase obligation shall pertain to all
representations and warranties of the
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Seller contained in Section 4(aa) of the Receivables Contribution Agreement,
whether or not the Seller has knowledge of the breach at the time of the breach
or at the time the representations and warranties were made. If the Issuer
fails to pay such Release Payment within five (5) Business Days of the date
when it is due pursuant to the Receivables Contribution Agreement, the Trustee
shall enforce the Issuer's remedies against the Seller under the Receivables
Contribution Agreement for the breach of such representation and warranty.
Upon any such receipt of the Release Payment in the Collection
Account, the Trustee on behalf of the Noteholders shall, without further
action, be deemed to release its security interest in, to and under the Removed
Receivable so repurchased, all monies due or to become due with respect thereto
after the date of such release and all proceeds thereof and the Trustee shall
indicate such release on the most current Schedule of Receivables. The Trustee
shall (at the Issuer's expense) execute such documents and instruments of
release and take such other actions as shall be reasonably requested and
prepared by the Issuer to effect the security interest release pursuant to this
Section. The sole remedies of the Trustee and the Noteholders with respect to a
breach of the Seller's representations and warranties pursuant to Section 4(aa)
of the Receivables Contribution Agreement shall be to enforce the obligation of
the Issuer hereunder and the remedies of the Issuer against the Seller under
the Receivables Contribution Agreement. The Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the repayment for any Receivable pursuant to this Section, except as
otherwise provided in Section 10.02.
SECTION 2.05. DUTIES OF TRUSTEE WITH RESPECT TO THE RECEIVABLE
FILES
(a) Safekeeping. The Trustee or OAC, in its capacity as custodian
(each, a "Custodian") pursuant to Section 2.02, shall hold the portion of the
Receivable Files that it is required to maintain under Section 2.02 in its
possession from time to time for the use and benefit of all present and future
Noteholders, and maintain such accurate and complete accounts, records and
computer systems pertaining to each Receivable File as shall enable the
Verification Agent and the Trustee to comply with this Indenture. Each
Custodian shall act with reasonable care, using that degree of skill and
attention that it would exercise with respect to the receivable files of
comparable receivables that such Custodian owns for itself (whether or not the
Custodian shall then own such comparable receivables for itself). Each
Custodian shall promptly report to the Issuer any failure on its part to hold
the Receivable Files and maintain its accounts, records and computer systems as
herein provided and promptly take appropriate action to remedy any such
failure.
(b) Maintenance of and Access to Records. Each Custodian shall
maintain each portion of the Receivable File that it is required to maintain
under this Indenture at its offices at the Corporate Trust Office (in the case
of the Trustee) or 7800 McCloud Road, Greensboro, NC 27409-9634 (in the case of
OAC) as the case may be, or at such other office as shall be specified to the
Trustee, the Noteholders, the Issuer and the Verification Agent by 30 days'
prior written notice. The Trustee shall take all actions necessary or
reasonably requested by the Majority Noteholders to amend any existing
financing statements and continuation statements, and file additional financing
statements and any other steps reasonably requested by the Majority Noteholders
to further perfect or evidence the rights, claims or security interests of the
Trustee under any of the Transaction Documents, it being understood that all
costs incurred in
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connection with complying with any such reasonable request of the Majority
Noteholders shall be borne by OAC. The Trustee and OAC, in their capacities as
Custodian(s), shall make available to the Issuer, the Verification Agent, a
group of Interested Noteholders and the Trustee (in the case of OAC) or their
duly authorized representatives, attorneys or auditors the portion of the
Receivable Files that it is required to maintain under this Indenture and the
accounts, records and computer systems maintained by the Trustee or OAC with
respect thereto upon not less than two Business Days' prior written notice for
examination during normal business hours.
SECTION 2.06. RESERVED.
SECTION 2.07. SATISFACTION AND DISCHARGE OF INDENTURE.
Whenever the following conditions shall have been satisfied:
(a) an amount sufficient to pay and discharge the outstanding
Note Balance, plus accrued and unpaid interest on the Notes, plus all other
amounts due and owing to the Noteholders has been paid to the Noteholders;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder; and
(c) the Issuer has delivered to the Trustee an Officers'
Certificate of the Issuer and an Opinion of Counsel each stating that all
conditions precedent herein provided for the satisfaction and discharge of this
Indenture with respect to the Notes have been complied with;
then this Indenture and the lien, rights and interests created hereby shall
cease to be of further effect with respect to the Notes, and the Trustee shall,
at the expense of the Issuer, (i) execute and deliver all such instruments as
may be necessary to acknowledge the satisfaction and discharge of this
Indenture with respect to the Notes, (ii) pay, or assign or transfer and
deliver, to the Issuer, all cash, securities and other property held by it as
part of the Trust Estate or other assets remaining after satisfaction of the
conditions specified in clauses (a) and (b) above, and (iii) notify the REMIC
Trustees of the satisfaction and discharge of this Indenture and instruct the
REMIC Trustees with respect to such REMIC Trusts to permit the REMIC Servicer,
rather than the Issuer, to withdraw P&I Advance Reimbursement Amounts from the
related Certificate Accounts.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Notes, the obligations of the Issuer to the Trustee under
Section 10.07, the obligations of the Trustee to the Issuer, and to the
Noteholders under Section 4.04, the obligations of the Trustee to the
Noteholders under Section 4.07, and rights to receive payments of principal of
and interest on the Notes, and the rights, privileges and immunities of the
Trustee under Articles IX and X, shall survive.
SECTION 2.08. APPLICATION OF TRUST MONEY.
All money deposited with the Trustee or the Paying Agent pursuant to
Sections 4.02 and 4.03 shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture, to the payment to the
Persons entitled thereto, of the principal, interest, fees, costs
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and expenses (or Transferor Interest, Funding Amount or other amount) for whose
payment such money has been deposited with the Trustee or the Paying Agent.
ARTICLE III
ADMINISTRATION OF RECEIVABLES
SECTION 3.01. DUTIES OF THE VERIFICATION AGENT AND THE TRUSTEE.
(a) The Verification Agent shall initially be The Chase Manhattan
Bank. The Verification Agent, as agent for the Noteholders, shall perform the
duties required of it pursuant to Section 3.04 (based solely on the information
received from the REMIC Servicer and maintained with the Trustee pursuant to
Section 2.02) with reasonable care, using that degree of skill and attention
that the Verification Agent would exercise with respect to the receivable files
of comparable receivables that it administers for itself (whether or not the
Verification Agent shall then be administering comparable receivables for
itself). The Verification Agent's duties shall include recording amounts
received from the Issuer and amounts remitted to the Collection Account,
responding to inquiries of the Trustee or by federal, state or local government
authorities with respect to the Receivables, sending payment information to the
Trustee, reporting tax information to the Noteholders in accordance with its
customary practices, accounting for collections, publishing monthly and annual
statements to the Trustee with respect to payments, generating federal income
tax information and performing the other duties specified herein. In performing
the above-referenced services, the Verification Agent shall perform in
accordance with customary procedures.
(b) The Issuer (with the consent of the Majority Noteholders) or
the Majority Noteholders may at any time terminate the Verification Agent or
Paying Agent without cause upon 60 days' prior notice, and if so, the Majority
Noteholders shall also remove the Trustee as provided in Section 10.10(c). If
at any time the Verification Agent or Paying Agent shall fail to resign after
written request therefor by the Issuer or the Majority Noteholders, or if at
any time the Verification Agent or Paying Agent shall be legally unable to act,
or shall be adjudged bankrupt or insolvent, or a receiver of the Verification
Agent or Paying Agent or of its property shall be appointed, or any public
officer shall take charge or control of the Verification Agent or Paying Agent
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation, then the Majority Noteholders may remove the Verification Agent
or Paying Agent and if so, the Majority Noteholders shall also remove the
Trustee as provided in Section 10.10(c). If the Verification Agent or Paying
Agent is removed under the authority of the immediately preceding sentence, the
Issuer shall promptly appoint a successor Verification Agent or Paying Agent
reasonably acceptable to the Majority Noteholders, by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Verification
Agent or Paying Agent so removed and one copy to the successor Verification
Agent or Paying Agent, and pay all fees owed to the outgoing Verification Agent
or Paying Agent. A copy of such instrument shall be delivered to the
Noteholders and the REMIC Servicer by the Verification Agent or Paying Agent or
the Issuer. Any resignation or removal of the Verification Agent or Paying
Agent and appointment of a successor Verification Agent or Paying Agent
pursuant to any of the provisions of this Section shall not become effective
until acceptance of appointment by the successor Verification Agent or Paying
Agent as provided herein. The Issuer
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shall give the Rating Agency and the Noteholders notice of any such resignation
or removal of the Verification Agent or Paying Agent and appointment and
acceptance of a successor Verification Agent or Paying Agent. Notwithstanding
the foregoing, no resignation, removal or termination of the Verification Agent
or the Paying Agent shall be effective until the resignation, removal or
termination of the Trustee. Any successor Trustee appointed shall also be the
successor Verification Agent and Paying Agent hereunder. Any expenses incurred
by the Trustee, the Verification Agent or Paying Agent in conjunction with a
removal without cause shall be at the expense of the terminating party.
(c) Any successor Verification Agent or Paying Agent appointed
hereunder shall execute, acknowledge and deliver to the Issuer and to its
predecessor Verification Agent or Paying Agent an instrument accepting such
appointment under this Indenture, and thereupon the resignation or removal of
the predecessor Verification Agent or Paying Agent shall become effective and
such successor Verification Agent or Paying Agent, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Indenture, with like
effect as if originally named as Verification Agent or Paying Agent. The
predecessor Verification Agent or Paying Agent shall deliver to the successor
Verification Agent or Paying Agent all documents and statements held by it
under this Indenture; the Issuer, and the predecessor Verification Agent or
Paying Agent shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Verification Agent or Paying Agent all such rights,
powers, duties and obligations. Upon acceptance of appointment by a successor
Verification Agent or Paying Agent as provided in this Section, the Issuer
shall mail notice of the successor of such Verification Agent or Paying Agent
under this Indenture to all Noteholders at their addresses as shown in the Note
Register and shall give notice by mail to the Rating Agency. If the Issuer
fails to mail such notice within ten (10) days after acceptance of appointment
by the successor Verification Agent or Paying Agent, the successor Verification
Agent or Paying Agent shall cause such notice to be mailed at the expense of
OAC.
(d) Without limiting the generality of the foregoing, the Trustee
at the direction of the Majority Noteholders shall be authorized and empowered
by the Issuer to execute and deliver, on behalf of itself, the Noteholders, or
any of them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Receivables as provided hereunder. To the extent not prohibited
by applicable law, the Trustee is hereby authorized to commence at the
direction of the Majority Noteholders, in its own name or in the name of the
Issuer, legal proceedings to enforce any Receivable against the related REMIC
Trustee or the REMIC Servicer, as the case may be, or to commence or
participate in a legal proceeding (including without limitation a bankruptcy
proceeding) relating to or involving a Receivable or the REMIC Servicer. If the
Trustee is directed to commence or participate in such a legal proceeding in
its own name, the Issuer shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection on behalf of the party retaining
an interest in such Receivable, such Receivable and the other property Granted
as part of the Trust Estate pursuant to Section 2.01 with respect to such
Receivable to the Trustee for purposes of commencing or participating in any
such proceeding as a party or claimant, and the Trustee is authorized and
empowered by the Issuer to execute and deliver in the Trustee's name any
notices, demands, claims, complaints, responses, affidavits or other documents
or instruments in connection with any such proceeding (to the fullest extent
permitted by applicable law). If in
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any such enforcement suit or legal proceeding it shall be held that the Trustee
may not enforce a Receivable on the grounds that it shall not be a real party
in interest or a holder entitled to enforce such Receivable, the Issuer on
behalf of the Noteholders shall, at the Issuer's expense and at the written
direction of the Trustee, take all commercially reasonable steps to enforce
such Receivable. To the extent an assignment is prohibited, prior consent by
the Issuer is hereby given to the Trustee authorizing the transfer of
Receivables to legal counsel (selected by the Trustee) for the purpose of
commencing legal proceedings on behalf of the Issuer or the Trustee. It is
understood by the Trustee that nothing contained herein will permit or allow
the Trustee to control or interfere with the relationship between counsel, the
Issuer or the Trustee, but the Trustee is hereby authorized on behalf of the
Issuer to receive and convey information and instructions in order to
facilitate and coordinate the collection of transferred Receivables. The
Trustee shall deposit or cause to be deposited into the Collection Account, all
amounts realized in connection with any such action pursuant to Section 4.02.
Nothing contained herein shall in any way be deemed a grant of authority to the
Trustee to commence any suit or proceeding with respect to any underlying
Obligor under any Asset in any REMIC Trust for which a P&I Advance was made.
SECTION 3.02. MONTHLY REMIC SERVICER REPORT; PAYMENT DATE REPORT.
(a) By no later than the third Business Day before each Payment
Date, the REMIC Servicer shall deliver to the Issuer, the Initial Noteholders,
the Trustee and the Verification Agent a Monthly REMIC Servicer Report (in
electronic form) listing (A) the aggregate Receivables Balance of both the
Series-Based Receivables and the Asset-Based Receivables for each REMIC Trust
as of the close of business on the last Business Day of the Collection Period
preceding such Payment Date and listing the balance of all P&I Advances the
rights to reimbursement for which are not included in the Receivables
(summarized in each case by REMIC Trust), taking into account collections of
Net Proceeds received by such REMIC Trusts from Obligors by the close of
business on such date, even if not remitted by the Issuer to the Collection
Account until the next Business Day as long as such collections have been
received in the REMIC Trust's Certificate Account, (B) the aggregate
Receivables Balance of both the Series-Based Receivables and the Asset-Based
Receivables for each REMIC Trust as of the beginning of the preceding
Collection Period (summarized in each case by REMIC Trust), (C) a
reconciliation (by REMIC Trust) of the amounts set forth in clauses (A) and (B)
above showing, in the aggregate, P&I Advances made and recoveries thereof
during the preceding Collection Period and separately identifying Seller
Proceeds and Net Proceeds, (D) the aggregate Receivables Balance of the
Series-Based Receivables and the Asset-Based Receivables for each day during
the Collection Period, (E) a trial balance listing all Assets included in the
Asset-Based REMIC Trusts and listing all P&I Advances outstanding with respect
to such Assets as of the end of the related Collection Period and identifying
each Asset-Based Receivables by the related loan numbers and dates of each such
P&I Advance, and (F) setting forth such additional information as may be
reasonably requested by the Trustee, the Verification Agent, the Rating Agency
or the Majority Noteholders from time to time.
(b) In addition, no later than the third Business Day before each
Payment Date, the REMIC Servicer shall deliver to the Issuer, the Trustee, the
Verification Agent, the Payment Agent and the Initial Noteholders a report (the
"Payment Date Report") reporting (i) the amount of Available Funds that will be
transferred into the Note Payment Account on such Payment
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Date, the amount on deposit in the Reserve Account, and, if applicable, the
amount the Trustee is to withdraw from the Reserve Account and deposit into the
Note Payment Account on such Payment Date, and (ii) the amount of each payment
required to be made by the Trustee or the Paying Agent pursuant to Section
4.04(b) on such Payment Date. Without limiting the generality of the foregoing,
the Payment Date Report shall specify the Trustee Fee, the Interest
Distributable Amount for the Notes, any Interest Carryover Shortfall, the
Required Reserve Amount, the Reserve Fund Reimbursement Amount, the aggregate
Principal Distributable Amount (for Payment Dates occurring after the end of
the Funding Period), and the unpaid Note Balance (before and after giving
effect to any Principal Distributable Amount). The Payment Date Report shall
also report on Collection Account activity during the preceding Collection
Period, by reporting (1) the amount on deposit in the Collection Account at the
beginning of such Collection Period, (2) the amount of all Net Proceeds
deposited into the Collection Account during the Collection Period, (3) the
aggregate amount of Release Payments deposited into the Collection Account
during the Collection Period, (4) the aggregate amount of deposits into the
Collection Account from the Note Payment Account in respect of the Payment Date
occurring during the Collection Period, (5) the daily total of all payments
made in respect of the Transferor Interest and all Funding Amounts paid in
respect of Additional Receivables on each date during the related Collection
Period on which any such payment was made, and (6) the amount transferred from
the Collection Account to the Note Payment Account in respect of the Payment
Date that occurred during such preceding Collection Period. The Payment Date
Report shall also state any other information necessary for the Paying Agent
and the Trustee to make the payments required by Section 4.04 on such Payment
Date and all information necessary for the Trustee to send statements to
Noteholders pursuant to Section 4.07(a). Each Payment Date Report shall also
(A) commencing with the Payment Date Report for the seventh Payment Date,
report the Asset-Based Net Proceeds Coverage Percentage and the Series-Based
Net Proceeds Coverage Percentage as of the end of the preceding Collection
Period, (B) state the aggregate Collateral Balance as of the end of the
preceding Collection Period and demonstrate that the Collateral Requirement was
met at such time, and (C) list each Funding Termination Event and present a yes
or no answer beside each indicating whether each possible Funding Termination
Event has occurred as of the end of the preceding Collection Period.
(c) Notwithstanding anything contained herein to the contrary,
none of the Verification Agent (except as described in Section 3.04(a)), the
Trustee nor the Paying Agent shall have any obligation to verify or recalculate
any information provided to them by the REMIC Servicer.
SECTION 3.03. ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF
DEFAULT.
(a) OAC shall deliver to each Noteholder, the Rating Agency and
the Trustee, on or before March 31 of each calendar year, beginning in March
31, 2002, an Officer's Certificate executed by the chief financial officer of
OAC, stating that (i) a review of the activities of the Issuer and OAC during
the preceding 12-month period ended September 30 (or, in the case of the first
such statement, from the Closing Date through September 30, 2001) and of its
performance under this Indenture and the Receivables Contribution Agreement has
been made under the supervision of the officer executing the Officer's
Certificate, and (ii) each of the Issuer and OAC has fulfilled all its
obligations under this Indenture and the Receivables Contribution
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Agreement in all material respects throughout such period or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default and the nature and status thereof.
(b) The Verification Agent shall deliver to the Noteholders, the
Trustee and the Issuer promptly after a Responsible Officer has obtained actual
knowledge thereof, but in no event later than three Business Days thereafter,
written notice specifying the nature and status of any Event of Default, or
other occurrence which would have a material adverse effect on the rights or
interests of the Noteholders.
(c) OAC shall, on or before the last Business Day of the fifth
month following the end of OAC's fiscal year (September 30) beginning in 2001,
deliver to the Trustee and the Interested Noteholders a copy of the results of
any Uniform Single Attestation Program for Mortgage Bankers or similar review
conducted on OAC by its accountants and such other reports as OAC may prepare
relating to its servicing functions as the REMIC Servicer.
SECTION 3.04. VERIFICATION AGENT DUTIES; PERIODIC ACCOUNTANTS'
REPORT.
(a) The Verification Agent shall perform the procedures set forth
below with respect to each Monthly REMIC Servicer Report and shall report to
the Trustee (with a copy to each Noteholder and the REMIC Servicer) exceptions,
if any, on or before the related Payment Date. If the Verification Agent
reports any exceptions, the Verification Agent shall provide the Trustee (with
a copy to each Noteholder and the REMIC Servicer) with written notice
describing such exceptions, and the REMIC Servicer and the Verification Agent
shall attempt to reconcile such exceptions prior to the third Business Day
following the related Payment Date. If the Verification Agent and the REMIC
Servicer are unable to reconcile exceptions with respect to a Monthly REMIC
Servicer Report, then the Majority Noteholders, in their sole discretion, may,
through their designated representatives, including without limitation any
independent certified public accountants they select, examine the REMIC
Servicer's books and records and conduct other procedures as described in
Section 3.05, at OAC's expense, to reconcile such exceptions or or correct
errors associated with them. The Monthly REMIC Servicer report shall be amended
and redistributed to reflect the effect, if any, of such reconciliation or
corrections, as soon as reasonably practicable.
(i) Confirm that the aggregate Receivables Balance as of
the beginning of the Collection Period agrees with
the aggregate Receivables Balance as of the end of
the second preceding Collection Period appearing in
the Monthly REMIC Servicer Report for the preceding
month.
(ii) Confirm that the amounts shown in the Monthly REMIC
Servicer Report as "P&I Advances" agree with the
corresponding amounts set forth in the REMIC Trust
Remittance Reports for each REMIC Trust for the same
Collection Period.
(iii) Confirm that the aggregate Receivables Balance as of
the end of the Collection Period for each
Asset-Based REMIC Trust agrees with the total of the
itemized Receivables Balances appearing in the
listing of all
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outstanding Assets for such REMIC Trust in the
Monthly REMIC Servicer Report.
(iv) Verify the REMIC Servicer's calculations of the
Asset-Based Net Proceeds Coverage Percentage and the
Series-Based Net Proceeds Coverage Percentage set
forth in the Monthly REMIC Servicer Report.
(v) Determine that the Monthly REMIC Servicer Report is
mathematically accurate.
(b) The Verification Agent shall perform the procedures set forth
below with respect to each Funding Date Report and Transferor Interest Payment
Report prior to making any funding on such date:
(i) Confirm that the aggregate Receivables Balance
reported in such report for each Asset-Based REMIC
Trust agrees with the total of the itemized
Receivables Balances appearing in the listing of all
outstanding Assets for such REMIC Trust.
(ii) Confirm that such report indicates that the
Collateral Requirement will be satisfied (based
solely upon the information contained in such
report).
(iii) Determine that the amount reported to be on deposit
in the Collection Account, after payment of the
related Funding Amount, in such Funding Date Report
at least equals the appropriate Required Expense
Reserve.
(iv) Determine that such report is mathematically
accurate.
(c) The Verification Agent shall perform the procedures set forth
below with respect to each Payment Date Report and report to the Trustee (with
a copy to each Noteholder and the REMIC Servicer) exceptions, if any, on or
before the related Payment Date. If the Verification Agent reports any
exceptions, the Verification Agent shall provide the Trustee (with a copy to
each Noteholder and the REMIC Servicer) with written notice describing such
exceptions and the REMIC Servicer and the Verification Agent shall reconcile
such exceptions prior to the third Business Day following the related Payment
Date. If the Verification Agent and the REMIC Servicer are unable to reconcile
exceptions with respect to a Payment Date Report, then the Majority
Noteholders, in their sole discretion, may, through their designated
representatives, including without limitation any independent certified public
accountants they select, examine the REMIC Servicer's books and records and
conduct other procedures as described in Section 3.05, at OAC's expense, to
reconcile such exceptions or correct errors associated with them. The effect,
if any, of such reconciliation shall be reflected in the succeeding Payment
Date Report.
(i) Confirm that the deposits to and withdrawals from
the Collection Account reflected in the Payment Date
Report during the preceding Collection Period (e.g.,
amounts of Net Proceeds and Release Payments
deposited into the Collection Account during such
Collection Period, and amounts deposited into the
Collection Account from the Note Payment Account
during such Collection Period, and amounts of
Funding Amounts and
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payments in respect of the Transferor Interest
withdrawn from the Collection Account during the
Collection Period) agree with the corresponding
amounts reflected in the bank statement(s) for the
Collection Account, and that the aggregate Funding
Amounts and Transferor Interest Payments reported in
the Payment Date Report equal the sum of all amounts
reported for Funding Amounts and Transferor Interest
Payments reported in all Funding Date Reports and
Transferor Interest Payment Reports delivered during
the preceding Collection Period.
(ii) Confirm that the Available Funds remitted by the
Trustee to the Note Payment Account for the Payment
Date and each amount required to be remitted on such
Payment Date pursuant to Section 4.04(b) agree with
the corresponding amounts reported in the Payment
Date Report.
(iii) Determine that the Payment Date Report is
mathematically accurate.
(d) OAC, at its own expense, shall cause PricewaterhouseCoopers,
LLP or another firm of nationally recognized independent public accountants
(who may also render other services to OAC or to the Issuer) to deliver to the
Trustee (with a copy to each Noteholder) a report of agreed upon procedures
containing the procedures described below. The first reporting period is from
the Closing Date through September 30, 2002, and each subsequent reporting
period is each 12-month period ending September 30 thereafter. Each such annual
report must be delivered on or before the last Business Day of the third month
following the end of each reporting period, beginning with the annual reporting
period ending September 30, 2002. Such report shall also indicate that the firm
is independent from the Issuer and OAC within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
(i) Select at random two months from the reporting
period.
(ii) Select at random 12 REMIC Trusts (at least six of
which shall be Asset-Based REMIC Trusts, if six such
REMIC Trusts are included in the Trust Estate, for
each of the two months selected in (i).
(iii) Obtain the REMIC Servicer's records supporting the
amounts shown in the reconciliation described in
Section 3.02(a)(C) for the 24 test items selected in
(ii) above.
(iv) Select one Business Day's activity for each of the
24 test items. Trace the P&I Advances and P&I
Advance Recoveries for each of the 24 test items to
postings in the bank statement for the Certificate
Account for the related REMIC Trust.
(v) Aggregate the P&I Advances and P&I Advance
Recoveries for the 24 test items selected in (ii)
above for each Business Day in the related
Collection Period and compare the results to the
corresponding amounts shown in the related Monthly
REMIC Servicer Report.
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(vi) Select at random two Monthly REMIC Servicer Reports
from the reporting period and the related loan level
listings of Asset-Based Receivables and select at
random six Asset-Based REMIC Trusts for each of the
two Collection Periods related to such reports. From
each of the twelve (12) loan level listings, select
at random four (4) loans and, using the obligor
payment data reflected in the REMIC Servicer's
detailed servicing records, recompute the P&I
Advance with respect to such loans as of the end of
the related Collection Period and compare the
recomputed amounts to the corresponding amounts
shown in the loan level listings.
(vii) Select at random two Monthly REMIC Servicer Reports
from the reporting period and compare the total
Receivables appearing thereon to the corresponding
amount appearing in the REMIC Servicer's general
ledger. If the two amounts do not agree, obtain a
reconciliation of the two amounts, note the number
and magnitude of unreconciled amounts, if any.
All fees in connection with the agreed upon procedures letter will be paid
directly by OAC.
SECTION 3.05. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION.
The Custodians shall provide the Interested Noteholders with access to
the documentation relating to the Receivables as provided in Section 2.05(b).
In each case, access to documentation relating to the Receivables shall be
afforded without charge but only upon reasonable request and during normal
business hours at the offices of the Custodians. Nothing in this Section shall
impair the obligation of the Custodians to observe any applicable law
prohibiting disclosure of information regarding the Trust Estate and the
failure of the Custodians to provide access as provided in this Section as a
result of such obligation shall not constitute a breach of this Section.
Notwithstanding anything to the contrary contained in this Section
3.05, Section 2.05, Section 7.07 or in any other Section hereof, OAC, on
reasonable prior notice, shall permit any representative of the Trustee or any
Interested Noteholder, including, without limitation, independent certified
public accountants selected by the Trustee or the Interested Noteholder, as the
case may be, during OAC's normal business hours, to examine all the books of
account, records, reports and other papers of OAC relating to the Assets and
the Receivables, to make copies and extracts therefrom, and to discuss OAC's
affairs, finances and accounts relating to the Assets and the Receivables with
OAC's officers, employees and independent public accountants (and by this
provision OAC hereby authorizes OAC's accountants to discuss with such
representatives such affairs, finances and accounts), all at such times and as
often as reasonably may be requested. Unless an Event of Default or a Funding
Termination Event that has not been waived by the Majority Noteholders shall
have occurred, or there is an Interest Carryover Shortfall or the Notes have
been downgraded below the ratings assigned on the Closing Date, any
out-of-pocket costs and expenses incident to the exercise by the Trustee or any
Interested Noteholder of any right under this Section 3.05 shall be borne by
the Interested Noteholder(s). The parties hereto acknowledge that the Trustee
shall not exercise any right pursuant to this Section 3.05 prior to any event
set forth in the preceding sentence unless directed to do so by any Interested
Noteholder, and the Trustee shall have no liability for action in accordance
with this
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sentence. In the event that such right is exercised (i) following the
occurrence of a Funding Termination Event that has not been waived by the
Majority Noteholders, (ii) following the occurrence of an Event of Default that
has not been waived by the Majority Noteholders, (iii) while there is an
Interest Carryover Shortfall or (iv) while the Notes have been downgraded below
the ratings assigned on the Closing Date, such out-of-pocket costs and expenses
shall be borne by OAC, or if OAC does not pay such expenses within 60 days,
then by the Trust Estate. Prior to any such payment, OAC shall be provided with
commercially reasonable documentation of such costs and expenses.
Notwithstanding anything contained in this Section 3.05 or Section 7.07(r) to
the contrary, in no event shall the books of account, records, reports and
other papers of OAC or the Issuer relating to the Assets and the Receivables be
examined by independent certified public accountants at the direction of the
Trustee or any Interested Noteholder pursuant to the exercise of any right
under this Section 3.05 or Section 7.07(r) more than two times during any
12-month period, unless (i) a Funding Termination Event that has not been
waived by the Majority Noteholders has occurred during such 12-month period,
(ii) an Event of Default has occurred that has not been waived by the Majority
Noteholders during such 12-month period, (iii) there is an Interest Carryover
Shortfall or (iv) the Notes have been downgraded below the ratings assigned on
the Closing Date, in which case more than two examinations may be conducted
during a 12-month period, but such extra audits shall be at the sole expense of
the Interested Noteholder(s) requesting such audit(s).
SECTION 3.06. REPORTS TO NOTEHOLDERS AND THE RATING AGENCY.
The Trustee shall provide to each Noteholder and the Rating Agency (i)
the Officer's Certificate comprising an annual statement as to compliance
described in Section 3.03(a), (ii) written notice with respect to Events of
Default, as required by Section 3.03(b) and (iii) the Trustee's Certificate
delivered pursuant to Section 10.02 or 10.03.
SECTION 3.07. TAX TREATMENT.
Notwithstanding anything to the contrary set forth herein, the Issuer
has entered into this Indenture with the intention that for federal, state and
local income and franchise tax purposes (i) the Notes will qualify as
indebtedness secured by the Receivables and (ii) the Trust Estate shall not be
treated as an association or publicly traded partnership taxable as a
corporation. The Issuer, by entering into this Indenture, each Noteholder, by
its acceptance of a Note and each purchaser of a beneficial interest therein,
by accepting such beneficial interest, agree to treat such Notes as debt for
federal, state and local income and franchise tax purposes. The Trustee shall
treat the Trust Estate as a security device only, and shall not file tax
returns or obtain an employer identification number on behalf of the Trust
Estate. The provisions of this Indenture shall be construed in furtherance of
the foregoing intended tax treatment.
Notwithstanding the foregoing, if the Trust Estate is required to be
recognized as a partnership for federal or state income tax purposes, including
by reason of a determination by the Internal Revenue Service or any other
taxing authority that the Notes should not be properly characterized as debt
and therefore that the Trust Estate constitutes a partnership for income tax
purposes, the Issuer and the Noteholders agree that payments made to the
Noteholders pursuant to Section 4.04(b)(i) shall be treated as "guaranteed
payments" (within the meaning of Section
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707(c) of the Code) and all remaining taxable income or loss and any separably
allocable items thereof shall be allocated to the Issuer.
ARTICLE IV
THE ACCOUNTS; PAYMENTS; STATEMENTS TO NOTEHOLDERS
SECTION 4.01. ACCOUNTS.
The Trustee shall establish and maintain, or cause to be established
and maintained, the Collection Account, the Reserve Account and the Note
Payment Account, each of which shall be an Eligible Account, for the benefit of
the Noteholders. All amounts held in the Collection Account, the Reserve
Account or the Note Payment Account shall, to the extent permitted by this
Indenture and applicable laws, rules and regulations, be invested in Permitted
Investments by the depository institution or trust company then maintaining
such Account only upon written direction of the Issuer to the Trustee,
provided, however, in the event the Issuer fails to provide such written
direction to the Trustee, and until the Issuer provides such written direction,
the Trustee shall invest in such Permitted Investments satisfying the
requirements of clause (i) or (vi) of the definition thereof. Investments held
in Permitted Investments in the Accounts shall not be sold or disposed of prior
to their maturity. Earnings on investment of funds in the Accounts shall be
remitted by the Trustee upon the Issuer's request to the account or other
location of the Issuer's designation on the first Business Day of the month
following the month in which such earnings on investment of funds is received.
Such earnings shall not be available to the Trust Estate, shall not constitute
Available Funds and shall not be available for the funding of purchases of
Additional Receivables or distributions to be made pursuant to Section 4.04.
Any losses and investment expenses relating to any investment of funds in any
of the Accounts shall be for the account of the Issuer, which shall deposit or
cause to be deposited the amount of such loss (to the extent not offset by
income from other investments of funds in the related Account) in the related
Account promptly upon the realization of such loss. The taxpayer identification
number associated with each of the Accounts shall be that of the Issuer and the
Issuer will report for federal, state and local income tax purposes the income,
if any, earned on funds in the relevant Account. The Issuer hereby acknowledges
that all amounts on deposit in each Account (excluding investment earnings on
deposit in the Accounts) are held in trust by the Trustee for the benefit of
the Noteholders, subject to any express rights of the Issuer set forth herein,
and shall remain at all times during the term of this Indenture under the sole
dominion and control of the Trustee.
So long as the Trustee complies with the provisions of this Section
4.01, the Trustee shall not be liable for the selection of investments or for
investment losses incurred thereon by reason of investment performance,
liquidation prior to stated maturity or otherwise. The Trustee shall have no
liability in respect of losses incurred as a result of the liquidation of any
investment prior to its stated maturity or the failure to be provided with
timely written investment direction.
SECTION 4.02. COLLECTIONS.
(a) The Trustee shall deposit to the Collection Account all Net
Proceeds it receives from the Issuer daily, on the day on which such amounts
are received. The Issuer may arrange
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for daily automated clearing house ("ACH") debit pursuant to which all Net
Proceeds are automatically transferred to the Collection Account or to the
"Funding Account" (the "Funding Account") maintained by The Chase Manhattan
Bank, as agent for the REMIC Servicer, pursuant to that certain P&I Advance
Disbursement and Purchase Administration Agreement, of even date herewith,
among OAC, the Issuer, the Trustee and The Chase Manhattan Bank, as OAC's
agent, from the Certificate Accounts maintained pursuant to the REMIC Pooling
Agreements. In the event Net Proceeds are transferred to the Funding Account,
the REMIC Servicer hereby authorizes and directs the Trustee to withdraw such
Net Proceeds from the Funding Account and deposit them into the Collection
Account.
(b) On each Payment Date, the Trustee shall transfer from the
Collection Account to the Note Payment Account all Available Funds on deposit
in the Collection Account. Other than as specifically contemplated pursuant to
Section 4.03, the REMIC Servicer, the Issuer, the Verification Agent or the
Trustee shall not remit to the Note Payment Account, and each shall take all
reasonable actions to prevent other Persons from remitting to the Note Payment
Account, amounts which do not constitute payments, collections or recoveries
received, made or realized in respect of the Receivables or the initial cash
deposited by the Noteholders with the Trustee on the Closing Date, and the
Trustee will return to the Issuer or the REMIC Servicer any such amounts upon
receiving written evidence reasonably satisfactory to the Trustee that such
amounts are not a part of the Trust Estate.
(c) On each Business Day on which the Trustee receives a
remittance of Net Proceeds from the Issuer or withdraws Net Proceeds from the
Funding Account, the Trustee shall deposit such amounts received into the
Collection Account. On any Business Day during the Funding Period on which the
Issuer wishes to receive a payment in respect of the Transferor Interest, the
Issuer shall deliver, or cause to be delivered, to the Trustee and the Initial
Noteholders a report demonstrating the Issuer's right to receive such payment
(a "Transferor Interest Payment Report"), demonstrating that the Collateral
Requirement is satisfied on such date, and stating the amount of the Transferor
Interest as of such date, the amount of funds on deposit in the Collection
Account on such date, the amount of the Required Expense Reserve for the next
upcoming Payment Date, and the amount to be paid to the Issuer pursuant to this
Section 4.02(c). The Trustee shall be entitled to rely conclusively on any such
Transferor Interest Payment Report. The Transferor Interest Payment Report on
any Funding Date may be part of the related Funding Date Report, and no report
separate from the Funding Date Report shall be required for a Transferor
Interest payment that is to be made on a Funding Date. If the Collateral
Requirement is satisfied, then the Trustee shall withdraw from the Collection
Account, and shall remit to the Issuer, cash in an amount equal to the lesser
of (1) the amount of the Transferor Interest and (2) the amount by which (x)
funds on deposit in the Collection Account exceed (y) the amount of the
Required Expense Reserve for the next upcoming Payment Date. For purposes of
this Section 4.02(c), to the extent the Trustee receives Net Proceeds from the
Issuer later than 2:00 PM Eastern time on a Business Day, such funds shall be
deemed to have been received on the following Business Day. Notwithstanding the
foregoing, no payment in respect of the Transferor Interest shall be made
during the period from the end of a Collection Period through the Payment Date
occurring in the following month.
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SECTION 4.03. ADDITIONAL DEPOSITS.
The Issuer shall remit any Redemption Amount to the Trustee and the
Trustee shall remit such Redemption Amount pursuant to Section 11.02.
SECTION 4.04. ALLOCATIONS AND PAYMENTS.
(a) As required by Section 3.02(b), the REMIC Servicer shall
deliver a Payment Date Report to the Issuer, the Trustee, the Verification
Agent, the Payment Agent and the Noteholders by no later than the second
Business Day before each Payment Date.
(b) On each Payment Date, the Paying Agent shall make the
following payments from Available Funds on deposit in the Note Payment Account
and amounts on deposit in the Reserve Account in the following order of
priority and in the amounts set forth in the Payment Date Report for such
Payment Date; provided however, such payments shall be made only to the extent
of funds then on deposit in the applicable Account:
(i) to the Noteholders, pro rata, based on their
respective Note Balances (A) from Available Funds on
deposit in the Note Payment Account, an amount equal
to the sum of the Interest Distributable Amount for
the Notes for such Payment Date, plus any
outstanding amount of Interest Carryover Shortfall,
if any, for prior Payment Dates provided that (B) if
Available Funds are insufficient to pay the amount
described in clause (A) above, the Trustee shall
withdraw from the Reserve Account an amount equal to
the lesser of the amount then on deposit in the
Reserve Account and the amount of such interest
shortfall and shall disburse such amount to the
Noteholders in reduction of such shortfall;
(ii) to the Trustee (A) from Available Funds on deposit
in the Note Payment Account, an amount equal to the
sum of the Trustee Fee for such Payment Date, plus
all accrued and unpaid Trustee Fees, if any, for
prior Payment Dates provided that (B) if Available
Funds are insufficient to pay the amount described
in clause (A) above, the Trustee will withdraw from
the Reserve Account an amount equal to the lesser of
the amount then on deposit in the Reserve Account
and the amount of such shortfall for disbursement to
the Trustee in reduction of such shortfall;
(iii) to the Reserve Account, from Available Funds on
deposit in the Note Payment Account, an amount equal
to the lesser of remaining Available Funds and the
Reserve Fund Reimbursement Amount for such Payment
Date, if applicable;
(iv) after the Funding Period, to the Noteholders,
pro-rata, based on their respective Note Balances
(A) any remaining Available Funds and any other
amounts available on deposit in the Note Payment
Account, in reduction of the Note Balance of the
Notes, until such Note Balance is reduced to zero,
(B) if on the Final Payment Date there is an
outstanding Note Balance (after payment of the
amounts described in clause (A)
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above), the Trustee shall withdraw from the Reserve
Account an amount equal to the lesser of the amount
then on deposit in the Reserve Account and the
amount of the outstanding Note Balance and remit
such lesser amount to the Noteholders in reduction
of the outstanding Note Balance;
(v) (A) pro rata (1) to the Trustee, any of the
Trustee's reasonable, out of pocket expenses and
indemnities to which the Trustee is entitled to
payment (to the extent expressly set forth in this
Indenture), and for which the Trustee shall have
delivered a written invoice to the Issuer and the
REMIC Servicer no later than three Business Days
prior to such Payment Date, which expenses shall not
exceed $250,000 in the aggregate during the term of
this Indenture; provided that, if the Scheduled
Termination Date is extended past August 2003, an
additional $100,000 shall be available annually
under this clause, beyond the initial $250,000
available in the aggregate for the term of the
Indenture, for each 12-month period for which the
Scheduled termination Date shall have been extended,
and that such additional annual amount available
shall be pro-rated for any partial year extension,
it being understood that any such $100,000
additional amount or portion thereof shall be
available for the year to which it relates, and
shall not be available after the expiration of the
extension period in respect of which it arose, and
(2) to the Securities Intermediary for any
indemnification amounts owed by the Trust Estate to
the Securities Intermediary pursuant to Section
4.08(c); and
(vi) (A) during the Funding Period, any remaining amounts
to the Collection Account, and (B) after the Funding
Period has ended, any remaining amounts to the
Issuer and in such case, such amounts paid shall be
released from the lien of this Indenture.
If the Trust Estate is required to be recognized as a partnership for
federal or state income tax purposes, including by reason of a determination by
the Internal Revenue Service or any other taxing authority that the Notes
should not be properly characterized as debt and that the Trust Estate
therefore constitutes a partnership for income tax purposes, amounts withheld
by the Trustee in compliance with federal and state income tax laws, including
without limitation, amounts withheld with respect to foreign persons in
accordance with the Code (and the corresponding provisions of state and local
law), shall be treated for all purposes of this Indenture as amounts actually
paid to the relevant Noteholder. Additionally, all other amounts withheld in
accordance with the terms of the Code (and the corresponding provisions of
state and local law) shall be treated for all purposes of this Indenture as
amounts actually paid to the relevant Noteholder.
(c) On each Payment Date, the Trustee shall instruct the Paying
Agent to distribute to each Noteholder of record on the related Record Date by
wire transfer of immediately available funds, the amount to be paid to such
Noteholder in respect of the related Note on such Payment Date or, if a wire
transfer cannot be effected, by check delivered to each Noteholder of record on
the related Record Date at the address listed on the records of the Note
Registrar.
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(d) The provisions of this Section 4.04 (including Section
4.04(b)) are subject to Section 6.10 hereof.
SECTION 4.05. RESERVE ACCOUNT.
(a) Pursuant to Section 4.01, the Trustee shall establish and
maintain the Reserve Account, which shall be an Eligible Account, for the
benefit of the Noteholders. On or prior to the Closing Date, the Issuer shall
deposit an amount equal to the Required Reserve Amount into the Reserve
Account. Thereafter, on each Payment Date, the Trustee shall withdraw amounts
from the Note Payment Account and deposit them into the Reserve Account
pursuant to, and to the extent required by, Section 4.04(b)(iii).
(b) Consistent with the limited purposes for which the Reserve
Account is to be established, (x) on each Payment Date, an amount equal to the
aggregate of amounts described in Sections 4.04(b)(i)(B), 4.04(b)(ii)(B) and
4.04(b)(iv)(B) if any, shall be withdrawn from the Reserve Account by the
Trustee and remitted for payment as described in those Sections, and (y) upon
payment of all sums payable hereunder with respect to the Notes, any amounts
then on deposit in the Reserve Account shall be remitted by the Trustee to the
Issuer and shall be released from the lien of the Trust Estate.
(c) Amounts held in the Reserve Account shall be invested in
Permitted Investments at the direction of the Issuer as provided in Section
4.01.
(d) The Trustee shall pay, prior to the Stepdown Date, to the
Issuer on each Payment Date, and on or after the Stepdown Date to the Note
Payment Account, the amount by which the amount in the Reserve Account exceeds
the Required Reserve Amount, after giving effect to all distributions required
to be made from the Reserve Account and the Note Payment Account on such date
and to the extent such funds are paid to the Issuer, all such amounts shall
thereupon be released from the lien of the Trust Estate.
SECTION 4.06. NOTE PAYMENT ACCOUNT.
(a) Pursuant to Section 4.01, the Trustee shall establish and
maintain the Note Payment Account, which shall be an Eligible Account, for the
benefit of the Noteholders. The Note Payment Account shall be funded to the
extent that (1) the Issuer shall remit to the Trustee the Redemption Amount
pursuant to Section 11.02, (2) the Trustee shall remit any Available Funds from
the Collection Account pursuant to Section 4.02(b) and (3) the Trustee shall
transfer amounts from the Reserve Account pursuant to, and to the extent
required by Section 4.05.
(b) On each Payment Date, an amount equal to the aggregate of
amounts described in Section 4.04(b) shall be withdrawn from the Note Payment
Account by the Trustee and remitted to the Noteholders and other persons or
Accounts described therein for payment as described in that Section, and upon
payments of all sums payable hereunder with respect to the Notes, any remaining
amounts then on deposit in the Note Payment Account shall be released from the
lien of the Trust Estate and paid to the Issuer.
(c) Amounts held in the Note Payment Account shall be invested in
Permitted Investments at the direction of the Issuer as provided in Section
4.01.
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SECTION 4.07. STATEMENTS TO NOTEHOLDERS.
(a) On each Payment Date, the Trustee will make the Monthly REMIC
Servicer Report and the Payment Date Report described in Section 3.02 (and, at
its option, any additional files containing the same information in an
alternative format) available to the Noteholders of record, the Issuer and any
other party designated by the Issuer, via the Trustee's internet website.
Access to the Payment Date Report via the Trustee's internet website will be
restricted by use of log-on identification and a password provided by the
Trustee. The Trustee shall only provide such password to the Rating Agency, the
Issuer and Noteholders of record. The Trustee's internet website shall
initially be located at "www.jpmorganchase.com". Assistance in using the
website can be obtained by calling the Trustee's customer service desk at (212)
946-7565. Parties that are unable to use the above distribution options are
entitled to have a paper copy mailed to them via first class mail by calling
the customer service desk and indicating such. The Trustee shall have the right
to change the way the Payment Date Reports are distributed in order to make
such distribution more convenient and/or more accessible to the above parties
and the Trustee shall provide timely and adequate notification to all above
parties regarding any such changes.
(b) Within a reasonable period of time after the end of each
calendar year, but not later than the latest date permitted by law, the Trustee
shall provide to each Person who at any time during such calendar year shall
have been a Noteholder the information that is necessary under the Code for the
preparation of the income tax returns of such Noteholder. In addition, upon
request, the Trustee shall mail a statement containing such information to such
Persons.
SECTION 4.08. SECURITIES ACCOUNTS.
(a) Securities Intermediary. The Issuer and the Trustee hereby
appoint The Chase Manhattan Bank as Securities Intermediary with respect to the
Collection Account, the Note Payment Account and the Reserve Account
(individually, an "Account," and collectively, the "Accounts"). The Security
Entitlements and all Financial Assets credited to the Accounts, including
without limitation all amounts, securities, investments, Financial Assets,
investment property and other property from time to time deposited in or
credited to such account and all proceeds thereof, held from time to time in
the Accounts will continue to be held by the Securities Intermediary for the
Trustee for the benefit of the Noteholders. Upon the termination of this
Indenture, the Trustee shall inform the Securities Intermediary of such
termination. By acceptance of their Notes or interests therein, the Noteholders
and all beneficial owners of Notes shall be deemed to have appointed The Chase
Manhattan Bank as Securities Intermediary. The Chase Manhattan Bank hereby
accepts such appointment as Securities Intermediary.
(i) With respect to any portion of the Trust Estate that
is credited to the Accounts, the Securities
Intermediary agrees that:
(A) with respect to any portion of the Trust
Estate that is held in deposit accounts,
each such deposit account shall be subject
to the security interest granted pursuant
to this Indenture, and the Securities
Intermediary shall comply with instructions
originated by the Trustee directing
dispositions of funds in the deposit
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accounts without further consent of the
Issuer and otherwise shall be subject to
the exclusive custody and control of the
Securities Intermediary, and the Securities
Intermediary shall have sole signature
authority with respect thereto;
(B) the sole assets permitted in the Accounts
shall be those that the Securities
Intermediary agrees to treat as Financial
Assets;
(C) any portion of the Trust Estate that is, or
is treated as, a Financial Asset shall be
physically delivered (accompanied by any
required endorsements) to, or credited to
an account in the name of, the Securities
Intermediary or other eligible institution
maintaining any Account in accordance with
the Securities Intermediary's customary
procedures such that the Securities
Intermediary or such other institution
establishes a Security Entitlement in favor
of the Trustee with respect thereto over
which the Securities Intermediary or such
other institution has Control; and
(D) it will use reasonable efforts to promptly
notify the Trustee and the Depositor if any
other Person claims that it has a property
interest in a Financial Asset in any
Account and that it is a violation of that
Person's rights for anyone else to hold,
transfer or deal with such Financial Asset.
(ii) The Securities Intermediary hereby confirms that (A)
each Account is an account to which Financial Assets
are or may be credited, and the Securities
Intermediary shall, subject to the terms of this
Indenture , treat the Trustee as entitled to
exercise the rights that comprise any Financial
Asset credited to any Account, (B) any portion of
the Trust Estate in respect of any Account will be
promptly credited by the Securities Intermediary to
such account, and (C) all securities or other
property underlying any Financial Assets credited to
any Account shall be registered in the name of the
Securities Intermediary, endorsed to the Securities
Intermediary or in blank or credited to another
securities account maintained in the name of the
Securities Intermediary, and in no case will any
Financial Asset credited to any Account be
registered in the name of the Issuer, the REMIC
Servicer or the Seller, payable to the order of the
Issuer, the REMIC Servicer or the Seller or
specially endorsed to any of such Persons.
(iii) If at any time the Securities Intermediary shall
receive an Entitlement Order from the Trustee
directing transfer or redemption of any Financial
Asset relating to any Account, the Securities
Intermediary shall comply with such Entitlement
Order without further consent by the Issuer, the
REMIC Servicer, the Seller or any other Person. If
at any time the Trustee notifies the Securities
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Intermediary in writing that this Indenture has been
discharged in accordance herewith, then thereafter
if the Securities Intermediary shall receive any
order from the Issuer directing transfer or
redemption of any Financial Asset relating to any
Account, the Securities Intermediary shall comply
with such Entitlement Order without further consent
by the Trustee or any other Person.
(iv) In the event that the Securities Intermediary has or
subsequently obtains by agreement, operation of law
or otherwise a security interest in any Account or
any Financial Asset or Security Entitlement credited
thereto, the Securities Intermediary hereby agrees
that such security interest shall be subordinate to
the security interest of the Trustee. The Financial
Assets and Security Entitlements credited to the
Accounts will not be subject to deduction, set-off,
banker's lien, or any other right in favor of any
Person other than the Trustee in the case of the
Accounts.
(v) There are no other agreements entered into between
the Securities Intermediary in such capacity, and
the Securities Intermediary agrees that it will not
enter into any agreement with, the Issuer, the REMIC
Servicer, the Seller or any other Person with
respect to any Account. In the event of any conflict
between this Agreement (or any provision of this
Agreement) and any other agreement now existing or
hereafter entered into, the terms of this Agreement
shall prevail.
(vi) The rights and powers granted herein to the Trustee
have been granted in order to perfect its interest
in the Accounts and the Security Entitlements to the
Financial Assets credited thereto, and are powers
coupled with an interest and will neither be
affected by the bankruptcy of the Issuer, the REMIC
Servicer or the Seller nor by the lapse of time. The
obligations of the Securities Intermediary hereunder
shall continue in effect until the interest of the
Trustee in the Accounts and in such Security
Entitlements, has been terminated pursuant to the
terms of this Indenture and the Trustee has notified
the Securities Intermediary of such termination in
writing.
(b) Definitions; Choice of Law. Capitalized terms used in this
Section 4.08 and not defined herein shall have the meanings assigned to such
terms in the New York UCC. For purposes of Section 8-110(e) of the New York
UCC, the "securities intermediary's jurisdiction" shall be the State of New
York.
(c) Limitation on Liability; Indemnification. None of the
Securities Intermediary or any director, officer, employee or agent of the
Securities Intermediary shall be under any liability to the Trustee or the
Noteholders for any action taken, or not taken, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Securities Intermediary against any liability to the
Trustee or the Noteholders which would otherwise be imposed by reason of the
Securities Intermediary's willful misconduct, bad faith or negligence in the
performance of its obligations or duties hereunder. The Securities Intermediary
and any director, officer, employee or agent of the Securities Intermediary may
rely in good faith on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Securities Intermediary shall be under no
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duty to inquire into or investigate the validity, accuracy or content of such
document. Pursuant to Section 4.04(b)(5) hereof, the Trust Estate shall
indemnify the Securities Intermediary for and hold it harmless against any
loss, liability or expense arising out of or in connection with this Indenture
and carrying out it duties hereunder, including the costs and expenses of
defending itself against any claim of liability, except in those cases where
the Securities Intermediary has been guilty of bad faith, negligence or willful
misconduct. The foregoing indemnification shall survive any termination of this
Indenture or the resignation or removal of the REMIC Servicer.
SECTION 4.09. NOTICE OF ADVERSE CLAIMS.
Except for the claims and interests of the Noteholders in the
Accounts, Chase does not know of any claim to, or interest in, the Account or
in any financial asset credited thereto. If any Person asserts any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against any Account or in
any financial asset carried therein, Chase will promptly notify the Interested
Noteholders, the Trustee and the Issuer thereof.
ARTICLE V
[RESERVED]
ARTICLE VI
THE NOTES
SECTION 6.01. THE NOTES.
(a) The Notes shall be non-recourse obligations of the Issuer and
the Trust Estate shall be the sole source of payments of principal thereof and
interest thereon. Notwithstanding anything else to the contrary contained
herein, the Notes shall not be considered a general obligation of the Issuer
for any purpose.
(b) The Notes shall be issued on the Closing Date in the amount
of the Initial Fixed Rate Note Balance. On the Closing Date, the Initial
Noteholders shall pay to the Trustee cash in the amount of the Initial Fixed
Rate Note Balance. The Issuer or OAC shall deliver to the Trustee the Schedule
of Initial Receivables. On the Closing Date, the Issuer or OAC shall pay to the
Trustee an initial Trustee Fee of $5,000, and the amount of the fees and
disbursements of the Trustee's legal counsel invoiced to OAC. The Trustee shall
remit to the Issuer, from the cash received from the Initial Noteholders, the
Funding Amount for the Initial Receivables, and shall deposit the balance of
such cash into the Collection Account, such that the sum of the Collateral
Balance and the amount on deposit in the Collection Account shall equal the
Initial Fixed Rate Note Balance. The Notes shall accrue interest at the Fixed
Rate from and including the Closing Date.
(c) The Notes shall be substantially in the form attached hereto
as Exhibit C and shall be issuable in minimum denominations of $1,000,000 and
integral multiples of $1,000 in excess thereof. The Notes shall each be
executed by the Issuer and authenticated by the Trustee by the manual or
facsimile signature of a Responsible Officer of the Trustee pursuant to a
written order
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of the Issuer requesting the Trustee to authenticate such Notes. Notes bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures were affixed, authorized to sign on behalf of the Issuer or the
Trustee shall be valid and binding obligations of the Issuer, notwithstanding
that such individuals or any of them have ceased to be so authorized prior to
the authentication and delivery of such Notes or did not hold such offices at
the date of such Notes. The Notes shall be dated the date of their
authentication.
(d) The Notes shall be issued only in a transaction (or
transactions) that was not required to be registered under the Securities Act.
For purposes of the preceding sentence, the term "Securities Act" shall mean
the provisions thereof exclusive of Regulation S (17 CFR 230.901 through
230.904).
SECTION 6.02. AUTHENTICATION AND DELIVERY OF THE NOTES.
The Trustee shall cause, the Notes, in authorized denominations
equaling in the aggregate the Initial Fixed Rate Note Balance, to be
authenticated and delivered upon the written order of the Issuer,
simultaneously with the Grant to the Trustee of the Receivables and the
delivery to the Trustee of the Schedule of Initial Receivables and the other
components of the Trust Estate, and after the receipt by the Trustee from the
Initial Noteholders of the cash referred to in Section 6.01(b) above. No Note
shall be entitled to any benefit under this Indenture or be valid for any
purpose, unless there appears thereon a certificate of authentication
substantially in the form set forth in the form of such Note attached hereto as
Exhibit C, executed by the Trustee by manual or facsimile signature, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered under this Indenture.
SECTION 6.03. REGISTRATION OF TRANSFER AND EXCHANGE OF NOTES.
(a) The Note Registrar shall maintain a Note Register in which,
subject to such reasonable regulations as it may prescribe, the Note Registrar
shall provide for the registration of the Notes and issuances, transfers and
exchanges thereof as provided in this Indenture. The Trustee is hereby
initially appointed Note Registrar for the purpose of registering the Notes and
issuances, transfers and exchanges thereof as provided in this Indenture. In
the event that, subsequent to the Closing Date, the Trustee notifies the Issuer
that it is unable to act as Note Registrar, the Issuer shall appoint another
bank or trust company, agreeing to act in accordance with the provisions of
this Indenture applicable to it, and otherwise acceptable to the Trustee with
notice to the Majority Noteholders, to act as successor Note Registrar under
this Indenture.
(b) Subject to the provisions of this Indenture, upon surrender
for registration of transfer of any Note at the Corporate Trust Office, the
Issuer shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes in
authorized denominations of a like aggregate principal amount.
(c) Notes may be exchanged for other Notes of authorized
denominations of a like aggregate principal amount, at the option of the
related Noteholder upon surrender of the Note to be exchanged at any such
office or agency. Whenever any Note is so surrendered for exchange, the Issuer
shall execute and the Trustee shall authenticate and deliver the Note that the
Noteholder making the exchange is entitled to receive. Every Note presented or
surrendered for
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registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Note
Registrar duly executed by the Noteholder thereof or his or her attorney duly
authorized in writing.
(d) No service or other charge shall be made for any registration
of issuance, transfer or exchange of Notes by the Trustee, but the Trustee may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Notes.
(e) Any Notes surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Trustee.
(f) Each purchaser of a Note or of a beneficial interest therein
shall be deemed to have represented and warranted, by accepting such Note or
beneficial interest as follows:
(i) it is acquiring the Notes for its own account or for
an account with respect to which it exercises sole
investment discretion, and that it or such account
is (1) a Qualified Institutional Buyer acquiring the
Notes for investment purposes and not for
distribution or (2) a person involved in the
organization or operation of the Issuer or an
Affiliate of such person within the meaning of Rule
3a-7 of the Investment Company Act (including, but
not limited to, OAC);
(ii) it acknowledges that the Notes have not been
registered under the Securities Act or any state
securities laws and may not be sold except as
permitted below;
(iii) it understands and agrees that such Notes are being
offered only in a transaction not involving any
public offering within the meaning of the Securities
Act, and that such Notes may be resold, pledged or
transferred only in accordance with Section 6.03(g)
below (a) to a person whom the transferor reasonably
believes after due inquiry is, and who has certified
that it is, a Qualified Institutional Buyer that
purchases for its own account or for the account of
a Qualified Institutional Buyer to whom notice is
given that the resale, pledge or transfer is being
made in reliance on Rule 144A or (b) to a person
involved in the organization or operation of the
Issuer or an Affiliate of such person within the
meaning of Rule 3a-7 of the Investment Company Act
(including, but not limited to, OAC) in a
transaction that is registered under the Securities
Act and applicable state securities laws or that is
exempt from the registration requirements of the
Securities Act and such laws;
(iv) it understands that the following legend will be
placed on the Notes, unless otherwise agreed by the
Issuer:
"THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE DIRECTLY OR INDIRECTLY SOLD OR
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OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT TO (1) A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, IN A
TRANSACTION THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT PURSUANT TO RULE 144A OR (2) A PERSON INVOLVED IN THE ORGANIZATION OR
OPERATION OF THE ISSUER OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF
RULE 3A-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, IN A TRANSACTION
THAT IS REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS NOTE UNDER THE
SECURITIES ACT OR ANY STATE SECURITIES LAWS. THE TRANSFER OF THIS NOTE IS
SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN THE INDENTURE UNDER
WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE TRUSTEE UPON
REQUEST). PROSPECTIVE PURCHASERS ARE HEREBY NOTIFIED THAT THE SELLER OF ANY
NOTES MAY BE RELYING ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT."
(v) it (x) has such knowledge and experience in
financial and business matters as to be capable of
evaluating the merits and risks of its prospective
investment in the Notes; and (y) it (or any account
for which it is purchasing) has the ability to bear
the economic risks of its prospective investment for
an indefinite period and can afford the complete
loss of such investment;
(vi) if it is acquiring the Notes as a fiduciary or agent
for one or more investor accounts, it represents
that it has sole investment discretion with respect
to each such account and it has full power to make
the foregoing acknowledgments, representations,
warranties and agreements on behalf of each such
account;
(vii) it understands that a Note may not be transferred to
an Employee Plan, or an entity, account or other
pooled investment fund the underlying assets of
which include or are deemed to include assets of an
Employee Plan unless the prospective transferee
provides a certification to the Trustee to the
effect that a prohibited transaction class
exemption, including but not limited to Department
of Labor Prohibited Transaction Exemption ("PTE")
84-14 (Class Exemption for Plan Asset Transactions
Determined by Independent Qualified Professional
Asset Managers); PTE 91-38 (Class Exemption for
Certain Transactions Involving Bank Collective
Investment Funds); PTE 90-1 (Class Exemption for
Certain Transactions Involving Insurance Company
Pooled Separate Accounts), PTE 95-60 (Class
Exemption for Certain Transactions Involving
Insurance Company General Accounts), and PTCE 96-23
(Class Exemption for Plan Asset Transactions
Determined by In-House Asset Managers), will apply
to the prospective transferee's acquisition and
continued holding of a Note;
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(viii) in the case of the acquisition of Notes, directly or
indirectly, by a partnership, limited liability
company, S corporation, grantor trust, or any other
"flow through entity" (within the meaning of United
States Treasury Regulations Section 1.7704-1(h)(3))
(a "Flow-Through Entity"), the Flow-Through Entity,
on behalf of each beneficial owner of interests,
directly or indirectly, in such Flow-Through Entity,
acknowledges that (A) substantially all of the value
of the beneficial owner's interest in the
Flow-Through Entity is not attributable to the
Flow-Through Entity's interest (direct or indirect)
in the Trust Estate and (B) no principal purpose of
the use of such Flow-Through Entity to acquire and
hold Notes (as opposed to direct acquisition or
ownership of Notes by the beneficial owners of the
Flow-Through Entity) is to permit the Trust Estate
to satisfy the 100-partner limitation of Treasury
Regulation Section 1.7704-1(h)(1)(ii) (assuming for
purposes of the foregoing that the Trust Estate were
classified as a partnership for federal and state
income tax purposes and not solely as a security
device for such purposes); and
(ix) it understands that there are restrictions on the
transfer of Notes that are intended to avoid
classification of the Trust Estate as a "publicly
traded partnership" within the meaning of Section
7704(b) of the Code.
(g) No sale, pledge or other transfer (a "Transfer") of any Notes
shall be made unless that Transfer is made pursuant to an effective
registration statement under the Securities Act and effective registration or
qualification under applicable state securities laws or is made in a
transaction that does not require such registration or qualification. If such a
Transfer is made without registration under the Securities Act (other than in
connection with the initial issuance thereof by the Issuer), then the Issuer
shall refuse to register such Transfer unless the Note Registrar receives (and
upon receipt, may conclusively rely upon) either: (i) an affidavit from such
Noteholder's prospective transferee substantially in the form attached as
Exhibit D hereto certifying among other things, facts which would demonstrate
that the Transfer would be exempt pursuant to Rule 144A under the Securities
Act (the "Transferee Agreement"); or (ii) in the case that the Transfer is to
be made to an Issuer Affiliate in a transaction that is exempt from
registration under the Securities Act, an Opinion of Counsel reasonably
satisfactory to the Issuer and the Note Registrar to the effect that such
Transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Estate or of the
Issuer, OAC, the Trustee or the Note Registrar in their respective capacities
as such), together with the written certification(s) as to the facts
surrounding such Transfer from the Noteholder desiring to effect such Transfer
and/or such Noteholder's prospective transferee on which such Opinion of
Counsel is based. None of the Issuer, the Trustee or the Note Registrar is
obligated to register or qualify the Notes under the Securities Act or any
other securities law or to take any action not otherwise required under this
Indenture to permit the transfer of any Note without registration or
qualification. Any Holder of a Note desiring to effect such a Transfer shall,
and upon acquisition of such a Note shall be deemed to have agreed to,
indemnify the Trustee, the Note Registrar and the Issuer against any liability
that may result if the Transfer is not so exempt or is not made in accordance
with such federal and state laws. In connection with a Transfer of the Notes,
the Issuer shall furnish upon request of a Noteholder to such Holder and any
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prospective purchaser designated by such Noteholder the information required to
be delivered under paragraph (d)(4) of Rule 144A of the Securities Act.
(h) No Transfer of any Notes shall be made if such Transfer would
result in the beneficial ownership of Notes by more than 75 Persons; provided,
however, that no Transfer of Notes shall be made if the transferee of Notes is
a Flow-Through Entity, unless such Flow-Through Entity is able to make and
makes the acknowledgment in paragraph 8 of Exhibit D attached hereto. The
Trustee shall be authorized to rely on a signed transferee agreement in the
form of Exhibit D attached hereto, in determining whether or not any Transfer
is authorized under this Section 6.03(h). Each Noteholder, by its acceptance of
a Note, acknowledges and agrees that the foregoing restriction on transfer of
the Notes is reasonable given the potentially adverse treatment to the Trust
Estate and the Noteholders of classification of the Partnership as a "publicly
traded partnership" within the meaning of Section 7704(b) of the Code.
(i) The Note Registrar shall not register the Transfer of any
Note unless the prospective transferee has delivered to the Trustee a
certification to the effect that either (i) the source of funds to be used to
acquire the Note does not include assets of any employee benefit plan, trust,
annuity or account described in Section 3(3) of ERISA or Section 4975(e)(1) of
the Code which is subject to Section 406 of ERISA or Section 4975 of the Code
(any such plan, trust, annuity or account being referred to herein as an
"Employee Plan") or an entity, account or other pooled investment fund the
underlying assets of which include or are deemed to include Employee Plan
assets by reason of an Employee Plan's investment in the entity, account or
other pooled investment fund or (ii) a prohibited transaction class exemption,
including but not limited to Department of Labor Prohibited Transaction
Exemption ("PTE") 84-14 (Class Exemption for Plan Asset Transactions Determined
by Independent Qualified Professional Asset Managers); PTE 91-38 (Class
Exemption for Certain Transactions Involving Bank Collective Investment Funds);
PTE 90-1 (Class Exemption for Certain Transactions Involving Insurance Company
Pooled Separate Accounts), PTE 95-60 (Class Exemption for Certain Transactions
Involving Insurance Company General Accounts), and PTCE 96-23 (Class Exemption
for Plan Asset Transactions Determined by In-House Asset Managers), will apply
to the prospective transferee's acquisition of a Note.
(j) To the extent permitted under applicable law, the Trustee
shall be under no liability to any Person for any registration of transfer of
any Note that is in fact not permitted by this Section 6.03 or for making any
payments due to the Noteholder thereof or taking any other action with respect
to such Noteholder under the provisions of this Indenture so long as the
transfer was registered by the Trustee in accordance with the requirements of
this Indenture.
SECTION 6.04. MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
If (i) any mutilated Note is surrendered to the Note Registrar, or the
Note Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Note, and (ii) there is delivered to the Note Registrar, the
Trustee and the Issuer such security or indemnity as may be required by them to
save each of them harmless (the general obligation of an institutional investor
that is investment grade rated being sufficient indemnity), then, in the
absence of notice that such Note has been acquired by a bona fide purchaser,
the Issuer shall execute and the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated,
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destroyed, lost or stolen Note, a new Note of like tenor and denomination or
ownership interest, as applicable. In connection with the issuance of any new
Note under this Section, neither the Issuer nor the Trustee shall charge any
fee, except that the Trustee may require the payment by the Noteholder thereof
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
If, after the delivery of such replacement Note or payment with
respect to a destroyed, lost or stolen Note, a bona fide purchaser of the
original Note in lieu of which such replacement Note was issued presents for
payment such original Note, the Issuer and the Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of any such Person, except
a bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Trustee in connection therewith.
SECTION 6.05. PERSONS DEEMED OWNERS.
Prior to due presentation of a Note for registration of transfer, the
Issuer, the Trustee, the Note Registrar and any of their respective agents may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payments pursuant to Section 4.04 and for all
other purposes whatsoever, and neither the Issuer, the Trustee, the Note
Registrar nor any of their respective agents shall be affected by any notice to
the contrary.
SECTION 6.06. ACCESS TO LIST OF NOTEHOLDERS' NAMES AND ADDRESSES.
The Note Registrar shall furnish or cause to be furnished to the
Issuer, within 15 days after receipt by the Note Registrar of a written request
therefor from the Issuer, a list of the names and addresses of the Noteholders
as of the most recent Record Date. If any Noteholder, (hereinafter referred to
as "Applicant"), applies in writing to the Trustee, and such application states
that the Applicants desire to communicate with other Noteholders with respect
to their rights under this Indenture or under the Notes, then the Trustee
shall, within five (5) Business Days after the receipt of such application,
afford such Applicants access, during normal business hours, to the current
list of Noteholders as reflected in the Note Register. Every Noteholder, by
receiving and holding a Note, agrees with the Issuer and the Trustee that
neither the Issuer nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Noteholders under this Indenture, regardless of the source from which such
information was derived.
SECTION 6.07. SURRENDERING OF NOTES.
Each Noteholder shall surrender its Note within 14 days after receipt
of the final payment received in connection therewith. Notwithstanding the
preceding sentence, the Trustee shall distribute such final payment to the
Noteholders without surrender or presentment of the Notes and shall have no
liability therefore so long as the payment is made to the Noteholders of
record. Following such payment such Note shall be deemed canceled. Each
Noteholder, by its acceptance of the final payment with respect to its Note,
will be deemed to have relinquished any
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further right to receive payments under this Indenture and any interest in the
Trust Estate so long as all amounts due and owing the Noteholders hereunder
have been paid. Each Noteholder shall indemnify and hold harmless the Issuer,
the Trustee and any other Person against whom a claim is asserted in connection
with such Noteholder's failure to tender the Note to the Trustee for
cancellation.
SECTION 6.08. MAINTENANCE OF OFFICE OR AGENCY.
The Trustee shall maintain in the City of New York, State of New York,
an office or offices or agency or agencies where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustee in respect of the Notes and this Indenture may be served. The
Trustee initially shall designate the Corporate Trust Office as its office for
such purposes. The Trustee shall give prompt written notice to the Issuer and
the Noteholders of any change in the location of the Note Register or any such
office or agency.
SECTION 6.09. INTEREST CALCULATIONS; INTEREST PAYMENTS.
The amount of interest to be paid in respect of the Notes on each
Payment Date in accordance with Section 4.04(b) shall equal the Interest
Distributable Amount and any Interest Carryover Shortfall. Interest shall be
due and payable in arrears on each Payment Date.
SECTION 6.10. PAYMENTS OF PRINCIPAL AND REBORROWINGS DURING THE
FUNDING PERIOD.
Subject to Section 6.11(b), any amounts on deposit in the Collection
Account shall be available for the Funding Amount of any Additional Receivables
Granted to the Trust Estate during the Funding Period provided no Funding
Interruption Event shall have occurred. Further, on each Business Day during
the Funding Period, any amounts on deposit in the Collection Account shall be
available to reduce the Transferor Interest, if any, to zero, subject to
Section 4.02(c). Except as provided in Section 4.04, amounts on deposit in the
Collection Account will not be available to the Trustee or the Holders of the
Notes as payments of principal on the Notes. The Funding Period may be extended
at the request of the Issuer with the prior written consent of all of the
Noteholders upon written notice given by the Issuer to all of the Noteholders
with a copy of the notice to the Trustee no later than sixty days prior to the
Scheduled Termination Date and upon confirmation by the Rating Agency of a
rating of "A" or higher for the Notes after giving effect to the extension. On
each Payment Date after the Funding Period, the Issuer shall cause to be made
pursuant to Section 4.04 payments in respect of principal on the Notes in the
amount, if any, of the Principal Distributable Amount for the Notes for such
Payment Date.
SECTION 6.11. PURCHASES OF ADDITIONAL RECEIVABLES DURING FUNDING
PERIOD.
(a) By no later than 11:00 AM Eastern time on each Funding Date,
OAC shall deliver to the Issuer, the Trustee, the Verification Agent and the
Majority Noteholders a report (each, a "Funding Date Report") (A) listing all
Receivables as of the close of business on such Funding Date (summarized in
each case by REMIC Trust), and including the aggregate Receivables Balance of
both the Series-Based Receivables and the Asset-Based Receivables for each
REMIC Trust at such date (summarized in each case by REMIC Trust) and including
a trial balance listing all Assets in the Asset-Based REMIC Trusts and
identifying each Asset-Based Receivable by loan number, and each Asset-Based
Receivable by the date of the related P&I Advance and
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Receivables Balance, (B) the aggregate amount of the Funding Amount to be paid
on the Funding Date, (C) the aggregate amount of the Transferor Interest
payments to be paid on the Funding Date, (D) a statement as to whether all
Funding Conditions have been satisfied, and (E) a computation demonstrating
that on the Business Day next succeeding such Funding Date, the Collateral
Requirement will be satisfied after any Additional Receivables to be funded on
such Funding Date have been funded, and after payment of the Funding Amount and
any Transferor Interest payment on such Funding Date.
(b) The Trustee shall remit to the Issuer (or the Issuer's
designee) by the close of business on each Funding Date, out of funds on
deposit in the Collection Account, the amount of the aggregate Funding Amount
for such Additional Receivables, to the extent the amount of funds on deposit
in the Collection Account, after disbursement of Funding Amounts would not be
less than the amount of the Required Expense Reserve for the next upcoming
Payment Date.
SECTION 6.12. ASSET-BASED RECEIVABLES.
Notwithstanding anything to the contrary in this Agreement, no
Asset-Based Receivables related to any Asset-Based REMIC Trust shall be sold or
contributed by OAC to the Issuer, or pledged by the Issuer to the Trust Estate,
and no Funding Amount shall be paid in respect of any Asset-Based Receivable,
until the REMIC Servicer shall have received from the Majority Noteholders a
written notice confirming that the Majority Noteholders are satisfied that the
REMIC Servicer's accounting system properly and accurately accounts for and
reports the creation and reimbursement of the Asset-Based Receivables related
to such Asset-Based REMIC Trust. The Majority Noteholders shall deliver written
notice of such satisfaction at such time as the REMIC Servicer shall have
demonstrated such ability to the satisfaction of the Majority Noteholders. On
the Asset-Based Receivables Acceptance Date for any Asset-Based REMIC Trust,
OAC shall sell and contribute the Initial Asset-Based Receivables from such
REMIC Trust to the Issuer pursuant to Section 2(a) of the Receivables
Contribution Agreement, and such Initial Asset-Based Receivables shall be
thereupon Granted by the Issuer to the Trust Estate. The Funding Date for any
Initial Asset-Based Receivables shall be on the related Asset-Based Receivables
Acceptance Date or as soon thereafter as possible. In addition, from and after
the Asset-Based Receivables Acceptance Date for any Asset-Based REMIC Trust,
such Asset-Based REMIC Trusts shall be automatically included among the
Designated REMIC Trusts, as described in the Receivables Contribution
Agreement. If the Majority Noteholders, in their sole discretion, are not
satisfied with respect to the REMIC Servicer's accounting system with respect
to the Asset-Based REMIC Trusts as described above within 90 days following the
Closing Date, then the Noteholders shall be entitled to receive on the next
succeeding Payment Date, a payment of principal sufficient to reduce the Fixed
Rate Note Balance to $30,000,000.
OAC may convert one or more Asset-Based REMIC Trusts into Series-Based
REMIC Trusts with the consent of the Majority Noteholders. When and if this
occurs with respect to any REMIC Trust(s), OAC shall provide written notice of
such event to the Issuer and the Trustee, and shall provide updated versions of
Schedules 1-A and 1-B hereto, which shall supplant the previous versions of
such schedules.
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EXHIBIT 10.2
ARTICLE VII
THE ISSUER
SECTION 7.01. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF
ISSUER.
The Issuer hereby makes the following representations, warranties and
covenants for the benefit of the Trustee and the Noteholders. The
representations shall be made as of the execution and delivery of this Indenture
and as of each Funding Date and as of each date of Grant and shall survive the
grant of a security interest in the Receivables to the Trustee.
(a) Organization and Good Standing. The Issuer is duly organized
and validly existing as a limited liability company in good standing under the
laws of the State of Nevada, with power and authority to own its properties and
to conduct its business as such properties are currently owned and such business
is presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own, hold, transfer, assign and convey the
Receivables.
(b) Due Qualification. The Issuer is duly qualified to do business
as a foreign limited liability company in good standing, and has obtained and
will keep in full force and effect all necessary licenses, permits and approvals
in all jurisdictions in which the ownership or lease of property or the conduct
of its business requires such qualifications, licenses, permits or approvals,
the noncompliance with which would have a material adverse effect on the
Noteholders.
(c) Power and Authority. The Issuer has and will continue to have
the power and authority to execute and deliver this Indenture and the other
Transaction Documents to which it is or will be a party, and to carry out their
respective terms; the Issuer has full power and authority to grant a security
interest in the Trust Estate and has duly authorized such grant to the Trustee
by all necessary action; and the execution, delivery and performance by the
Issuer of this Indenture and each of the other Transaction Documents to which it
is a party has been duly authorized by all necessary action of the Issuer.
(d) Valid Transfers; Binding Obligations. This Indenture evidences
a valid grant of a first priority perfected security interest under the UCC in
the Receivables, and such other portion of the Trust Estate as to which a
security interest may be perfected under the UCC, which is effective for so long
as the Notes remain outstanding, enforceable against creditors of and purchasers
from the Issuer, and each of the Transaction Documents to which the Issuer is a
party constitutes a legal, valid and binding obligation of the Issuer
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally or by general equity principles.
(e) No Violation. The consummation of the transactions
contemplated by this Indenture and the other Transaction Documents and the
fulfillment of the terms of this Indenture and the other Transaction Documents
do not conflict with, result in any breach of any of the terms or provisions of,
nor constitute (with or without notice or lapse of time or both) a default under
the Certificate of Formation or Operating Agreement of the Issuer or any
material
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indenture, agreement or other material instrument to which the Issuer is a party
or by which it shall be bound, nor result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Indenture), nor violate any law,
order, judgment, decree, writ, injunction, award, determination, rule or
regulation applicable to the Issuer of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Issuer or its properties, which breach, default,
conflict, Lien or violation would have a material adverse effect on the rights
or interests of the Noteholders.
(f) No Proceedings. There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign, now
pending, or to the Issuer's knowledge, threatened, against or affecting the
Issuer: (i) asserting the invalidity of this Indenture, the Notes or any of the
other Transaction Documents to which the Issuer is a party, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by this Indenture, or any of the other Transaction Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
(A) the performance by the Issuer of its obligations under, or the validity or
enforceability of, this Indenture, the Notes or any other Transaction Documents
or (B) the condition (financial or otherwise), business or operations of the
Issuer, or (iv) relating to the Issuer and which might adversely affect the
federal income tax attributes of the Notes.
(g) No Subsidiaries. The Issuer has no, and will not create any,
subsidiaries.
(h) Not an Investment Company. Neither the Issuer nor the Trust
Estate is an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act, and none of the
issuance of the Notes, the execution and delivery of the Transaction Documents
to which the Issuer is a party, the acquisition by the Issuer of Receivables, or
the performance by the Issuer of its obligations under the Transaction
Documents, or the use of the proceeds of the Notes by the Issuer will violate
any provision of the Investment Company Act, or any rule, regulation or order
issued by the Securities and Exchange Commission thereunder.
(i) [RESERVED]
(j) No Violation of Exchange Act or Regulations T, U or X. None of
the transactions contemplated in the Transaction Documents (including the use of
the proceeds from the sale of the Notes) will result in a violation of Section 8
of the Exchange Act, or any regulations issued pursuant thereto, including
Regulations T, U and X of the Board of Governors of the Federal Reserve System,
12 C.F.R., Chapter II. The Issuer does not own nor does it intend to carry or
purchase any "margin security" within the meaning of said Regulation U,
including margin securities originally issued by it or any "margin stock" within
the meaning of said Regulation U.
(k) All Tax Returns, True, Correct and Timely Filed. All tax
returns required to be filed by the Issuer in any jurisdiction have in fact been
filed and all taxes, assessments, fees and other governmental charges upon the
Issuer or upon any of its properties, and all income of franchises, shown to be
due and payable on such returns have been paid except for any such taxes,
assessments, fees and charges the amount, applicability or validity of which is
currently
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being contested in good faith by appropriate proceedings and with respect to
which the Issuer had established adequate reserves in accordance with GAAP. All
such tax returns were true and correct in all material respects and the Issuer
knows of no proposed additional tax assessment against it that could reasonably
be expected to have a material adverse effect upon the ability of the Issuer to
perform its obligations hereunder nor of any basis therefor. The provisions for
taxes on the books of the Issuer are in accordance with generally accepted
accounting principles.
(l) No Restriction on Issuer Affecting its Business. The Issuer is
not a party to any contract or agreement, or subject to any charter or other
restriction which materially and adversely affects its business nor has it
agreed or consented to cause any of its properties to become subject to any Lien
other than the Lien created hereby.
(m) Perfection of Security Interest. All filings and recordings as
may be necessary to perfect the interest of the Issuer in the Receivables and
such other portion of the Trust Estate as to which a sale or security interest
may be perfected by filing under the UCC, have been accomplished and are in full
force and effect. All filings and recordings against the Issuer required to
perfect the security interest of the Trustee on such Receivables and such other
portion of the Trust Estate as to which a security interest may be perfected by
filing under the UCC, have been accomplished and are in full force and effect.
The Issuer will from time to time, at its own expense, execute and file such
additional financing statements (including continuation statements) as may be
necessary to ensure that at any time, the interest of the Issuer in all of the
Receivables and such other portion of the Trust Estate as to which a security
interest may be perfected by filing under the UCC, and the security interest of
the Trustee in all of the Receivables and such other portion of the Trust Estate
as to which a security interest may be perfected by filing under the UCC are
fully protected.
(n) All Taxes, Fees and Charges Relating to Transaction and
Transaction Documents Paid. Any taxes, fees and other governmental charges
assessed or assessable against the Issuer or the Trust Estate in connection with
the execution and delivery of the Transaction Documents and the execution and
delivery and sale of the Notes that are due on or before the Closing Date have
been or will be paid by the Issuer at or prior to the Closing Date.
(o) No Requirement that Issuer File a Registration Statement.
There are no contracts, agreements or understandings between the Issuer and any
person granting said person the right to require the Issuer to file a
registration statement under the Securities Act with respect to any Notes owned
or to be owned by such person.
(p) No Broker, Finder or Financial Adviser Other than the
Placement Agent. The Issuer or any of its respective officers, directors,
employees or agents has not employed any broker, finder or financial adviser
other than the Placement Agent or incurred any liability for fees or commissions
to any person other than the Placement Agent in connection with the offering,
issuance or sale of the Notes.
(q) Notes Authorized, Executed, Authenticated, Validly Issued and
Outstanding. The Notes have been duly and validly authorized and, when duly and
validly executed and authenticated by the Trustee in accordance with the terms
of this Indenture and delivered to and
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paid for by each Purchaser as provided herein, will be validly issued and
outstanding and entitled to the benefits hereof.
(r) Location of Chief Executive Office and Records. The principal
place of business and chief executive office of the Issuer, and the office where
Issuer maintains all of its records, is located at 7800 McCloud Road,
Greensboro, NC 27409-9634; provided that, at any time after the Closing Date,
upon 30 days' prior written notice to the Trustee and the Noteholders, the
Issuer may relocate its jurisdiction of formation, and/or its principal place of
business and chief executive office, and/or the office where it maintains all of
its records, to another location or jurisdiction, as the case may be, within the
United States to the extent that the Issuer shall have taken all actions
necessary or reasonably requested by the Trustee or the Majority Noteholders to
amend its existing financing statements and continuation statements, and file
additional financing statements and to take any other steps reasonably requested
by the Trustee or the Majority Noteholders to further perfect or evidence the
rights, claims or security interests of the Trustee and the Noteholders under
any of the Transaction Documents.
(s) Ownership of the Issuer. Oakwood Acceptance Corporation owns a
100% membership interest in the Issuer. No one other than Oakwood Acceptance
Corporation has or will have any rights to acquire membership interests in the
Issuer.
(t) Solvency. During the term of this Indenture:(i) the Issuer is
not and will not be "insolvent" (as such term is defined in ss. 101(32)(A) of
the Bankruptcy Code); (ii) is and will be able to pay its debts as they become
due; and (iii) does not and will not have unreasonably small capital for the
business in which it is engaged or for any business or transaction in which it
is about to engage.
(u) Reporting and Accounting Treatment. For reporting and
accounting purposes, and in its books of account and records, the Issuer will
treat each transfer of Receivables pursuant to the Receivables Contribution
Agreement as an irrevocable sale and/or capital contribution of OAC's full
right, title and ownership interest in each such Receivable and the Issuer has
not accounted for or treated in any other manner and will not account for or
treat in any other manner the transactions.
(v) Governmental and Other Consents. No consents, approvals,
authorization or orders of, registration or filing with, or notice to any
Person, governmental authority or court is required for the execution, delivery
and performance of, or compliance with, the Transaction Documents by the Issuer,
except such consent, approvals, authorizations, filings and notices that have
already been made or obtained.
(w) Enforceability of Transaction Documents. Each of the
Transaction Documents to which it is a party has been duly authorized, executed
and delivered by the Issuer and constitutes the legal, valid and binding
obligation of the Issuer, enforceable against it in accordance with its terms.
(x) Accuracy of Information. The representations and warranties of
the Issuer in the Transaction Documents are true and correct in all material
respects as of the Closing Date and,
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except for representations and warranties expressly made as of a different date,
each Funding Date and each other date of Grant.
(y) Separate Identity. The Issuer is operated as an entity
separate from Oakwood Acceptance Corporation. The Issuer will comply with all
covenants set forth in its Operating Agreement.
(z) ERISA Compliant. The Issuer and all ERISA Affiliates are in
compliance with all applicable federal or state laws, including the rules and
regulations promulgated thereunder, relating to discrimination in the hiring,
promotion or pay of employees, any applicable federal or state wages and hours
law, and the provisions of ERISA applicable to its business, except where such
noncompliance would not, individually or in the aggregate, have a Material
Adverse Effect. The employee benefit plans, including employee welfare benefit
plans (the "Employee Plans") of the Issuer and all ERISA Affiliates have been
operated in compliance with the Code, all regulations, rulings and announcements
promulgated or issued thereunder and all other applicable governmental laws and
regulations (except to the extent such noncompliance would not, individually or
in the aggregate, have a Material Adverse Effect). No reportable event under
Section 4043(b) of ERISA or any prohibited transaction under Section 406 of
ERISA has occurred with respect to any Employee Plan maintained by the Issuer or
any ERISA Affiliate (except to the extent that any such event or transaction
would not, individually or in the aggregate, have a Material Adverse Effect).
There are no pending or, to the Issuer's best knowledge, threatened, claims by
or on behalf of any employee plan, by any employee or beneficiary covered under
any such plan or by any governmental authority or otherwise involving such plans
or any of their respective fiduciaries (other than for routine claims for
benefits). All Employee Plans that are group health plans have been operated in
compliance with the group health plan continuation coverage requirements of
Section 4980B of the Code in all material respects (except to the extent that
such noncompliance would not, individually or in the aggregate, have a Material
Adverse Effect). "Material Adverse Effect" means, when used in connection with
the Issuer, any development, change or effect that is materially adverse to the
business, properties, assets, net worth, financial condition, or results of
operations of the Issuer. Neither the Issuer nor any of its ERISA Affiliates
have a "defined benefit plan" as defined in ERISA.
(aa) Default. The Issuer is not in default under any material
agreement, contract, instrument or indenture to which the Issuer is a party or
by which it or its properties is or are bound, or with respect to any order of
any court, administrative agency, arbitrator or governmental body which would
have a material adverse effect on the transactions contemplated hereunder; and
no event has occurred which with notice or lapse of time or both would
constitute such a default with respect to any such agreement, contract,
instrument or indenture, or with respect to any such order of any court,
administrative agency, arbitrator or governmental body.
(bb) Information. No document, certificate or report furnished by
the Issuer, in writing, pursuant to this Agreement, any other Transaction
Document or in connection with the transactions contemplated hereby or thereby,
contains or will contain when furnished any untrue statement of a material fact.
There are no facts relating to the Issuer which materially adversely affect the
financial condition or assets or business of the Issuer, or which may impair the
ability of the Issuer to perform its obligations under this Indenture or any
other Transaction Document,
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which have not been disclosed herein or in the certificates and other documents
furnished by or on behalf of the Issuer pursuant hereto or thereto specifically
for use in connection with the transactions contemplated hereby or thereby. All
books, records and documents delivered to the Trustee or the Noteholders are and
will be true, correct and complete.
(cc) Name. The legal name of the Issuer is as set forth in this
Indenture and the Issuer does not use any other tradenames, fictitious names,
assumed names or "doing business as" names.
(dd) No Adverse Change. Since its formation, there has been no
change in the business, operations, financial condition, properties or assets of
the Issuer which would have a material adverse effect on its ability to perform
its obligations under this Indenture or any other Transaction Document or
materially adversely affect the transactions contemplated under this Indenture
or any other Transaction Document.
(ee) Funding Conditions Satisfied. As of each date on which
payments of a Funding Amount are made hereunder, all Funding Conditions will
have been satisfied.
(ff) Title. Immediately prior to its subjection to the Lien hereof,
the Issuer had good and marketable title to each related Receivable, free and
clear of all Liens and rights of others.
(gg) Validity of Security Interest. This Indenture creates a valid
and continuing security interest (as defined in the UCC) in the Aggregate
Receivables in favor of the Trustee, which security interest is prior to all
other Liens, and is enforceable as such as against creditors of and purchasers
from the Issuer.
(hh) UCC Characterization. The Aggregate Receivables constitute
"general intangibles" within the meaning of the UCC and the Uniform Commercial
Codes in effect in Nevada and North Carolina.
(ii) Financing Statements relating to the Receivables. Other than
the security interest granted to the Trustee pursuant to this Indenture, the
Issuer has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Aggregate Receivables. The Issuer has not
authorized the filing of and is not aware of any financing statement filed
against the Issuer that includes a description of collateral covering the
Aggregate Receivables other than (i) any financing statement related to the
security interest granted to the Trustee hereunder or (ii) that has been
terminated.
SECTION 7.02. REPAYMENT IN RESPECT OF RECEIVABLES UPON BREACH.
Upon discovery by the Issuer (which discovery shall be deemed to have
occurred upon the receipt of notice by a Responsible Officer of the Issuer) or
upon the actual knowledge of a Responsible Officer of the Trustee or Noteholders
of a breach of any of the representations and warranties of the Issuer set forth
in Section 7.01 or of the Seller set forth in the Receivables Contribution
Agreement, the party discovering such breach shall give prompt written notice to
the others. If such breach has or would have a material adverse effect on the
rights or interests of the Noteholders with respect to all or a portion of the
Receivables, then unless such breach shall have been cured within thirty (30)
days after the earlier to occur of the discovery of such breach
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by the Issuer or receipt of written notice of such breach by the Issuer, such
that the relevant representation and warranty shall be true and correct in all
material respects as if made on such day, and the Issuer shall have delivered to
the Trustee and the Noteholders a certificate of any Responsible Officer of the
Issuer describing the nature of such breach and the manner in which the relevant
representation and warranty became true and correct the Issuer shall pay the
Release Payment with respect to the affected Receivables(s) to the Collection
Account on the first Business Day after the expiration of such 30-day period.
This repayment obligation shall pertain to all representations and warranties of
the Issuer contained in Section 7.01, whether or not the Issuer has knowledge of
the breach at the time of the breach or at the time the representations and
warranties were made. If the Issuer fails to pay such Release Payment, the
Trustee shall enforce the Issuer's remedies, if any, against the Seller under
the Receivables Contribution Agreement for the breach of such representation and
warranty.
Upon any such repayment, the Trustee on behalf of the Noteholders
shall, without further action, be deemed to have released its security interest
in, to and under the Removed Receivables, all monies due or to become due with
respect thereto after the aforementioned Payment Date and all proceeds thereof.
The Trustee shall execute such documents and instruments and take such other
actions as shall be reasonably requested by the Issuer to effect the security
interest release pursuant to this Section. Notwithstanding the foregoing, the
Majority Noteholders may by delivery of prior written notice waive any breach
and repayment obligation of the Issuer pursuant to this Section 7.02. The
Trustee shall have no duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the repayment for any Receivables pursuant
to this Section, except as otherwise provided in Section 10.02.
SECTION 7.03. LIABILITY OF ISSUER; INDEMNITIES.
(a) Obligations. The Issuer shall be liable in accordance with
this Indenture only to the extent of the obligations in this Indenture
specifically undertaken by the Issuer in such capacity under this Indenture and
shall have no other obligations or liabilities hereunder. The Issuer shall
indemnify, defend and hold harmless the Trustee, the Verification Agent, the
Paying Agent, the Noteholders and the Trust Estate from and against any taxes
that may at any time be asserted against the Trustee or the Trust Estate with
respect to the transactions contemplated in this Indenture or any of the other
Transaction Documents, including, without limitation, any sales, gross receipts,
general corporation, tangible or intangible personal property, privilege or
license taxes (but not including any taxes asserted with respect to, and as of
the date of, the transfer of the Receivables to the Trust Estate, the issuance
and original sale of the Notes, or asserted with respect to ownership of the
Receivables, or federal, state or local income or franchise taxes or any other
tax, or other income taxes arising out of payments on the Notes, or any interest
or penalties with respect thereto or arising from a failure to comply therewith)
and costs and expenses in defending against the same.
(b) Notification and Defense. Promptly after any party seeking
indemnification hereunder (an "Indemnified Party") shall have been served with
the summons or other first legal process or shall have received written notice
of the threat of a claim in respect of which an indemnity may be claimed against
the Issuer under this Section 7.03, the Indemnified Party shall notify the
Issuer in writing of the service of such summons, other legal process or written
notice, giving information therein as to the nature and basis of the claim, but
failure so to notify the
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Issuer shall not relieve the Issuer from any liability which it may have
hereunder or otherwise except to the extent that the Issuer is prejudiced by
such failure so to notify the Issuer. The Issuer will be entitled, at its own
expense, to participate in the defense of any such claim or action and, to the
extent that it may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such Indemnified Party, and, after notice from the Issuer to
such Indemnified Party to assume the defense of any such action, the Issuer will
not be liable to such Indemnified Party under this Section 7.03 for any legal or
other expenses subsequently reasonably incurred by such Indemnified Party in
connection with the defense of any such action other than reasonable costs of
investigation unless, (i) the defendants in any such action include both the
Indemnified Party and the Issuer, and the Indemnified Party (upon the advice of
counsel) shall have reasonably concluded that there may be legal defenses
available to it that are different from or additional to those available to the
Issuer, or one or more Indemnified Parties, and which in the reasonable judgment
of such counsel are sufficient to create a conflict of interest for the same
counsel to represent both the Issuer and such Indemnified Party, (ii) the Issuer
shall not have employed counsel reasonably satisfactory to the Indemnified Party
to represent the Indemnified Party within a reasonable time after notice of
commencement of the action, or (iii) the Issuer has authorized the employment of
counsel for the Indemnified Party at the expense of the Issuer; then, in any
such event, described in this Section 7.03, such Indemnified Party shall have
the right to employ its own counsel in such action, and in such event the
reasonable fees and expenses of such counsel shall be borne by the Issuer;
provided, however, that the Issuer shall not in connection with any such action
or separate but substantially similar or related actions arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
Indemnified Parties. Each Indemnified Party, as a condition of the indemnity
agreement contained herein, shall use its commercially reasonable efforts to
cooperate with the Issuer in the defense of any such action or claim. The Issuer
shall not, without the prior written consent of the Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses. Indemnification under this Section shall include,
without limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Issuer has made any indemnity payments pursuant to this
Section and the recipient thereafter collects any of such amounts from others,
the recipient shall promptly repay such amounts collected to the Issuer, without
interest, so long as no amounts are outstanding to the Trustee, the Verification
Agent and the Paying Agent then due and owing to the Trustee, the Verification
Agent and the Paying Agent by the Issuer in which event such amounts shall
offset such obligations.
SECTION 7.04. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE ISSUER; CERTAIN LIMITATIONS.
(a) Merger, Etc. Any corporation (i) into which the Issuer may be
merged or consolidated, (ii) which may result from any merger, conversion or
consolidation to which the Issuer shall be a party, or (iii) which may succeed
to all or substantially all of the business or assets of the Issuer, which
corporation in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Issuer under this Indenture, shall be the
successor
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to the Issuer under this Indenture without the execution or filing of any
document or any further act on the part of any of the parties to this Indenture,
except that if the Issuer in any of the foregoing cases is not the surviving
entity, then the surviving entity shall execute an agreement of assumption to
perform every obligation of the Issuer hereunder, and the surviving entity shall
have taken all actions necessary or reasonably requested by the Issuer, the
Majority Noteholders or the Trustee to amend its existing financing statements
and continuation statements, and file additional financing statements and to
take any other steps reasonably requested by the Issuer, the Majority
Noteholders or the Trustee to further perfect or evidence the rights, claims or
security interests of the Issuer, the Noteholders or the Trustee under any of
the Transaction Documents. The Issuer (1) shall provide notice of any merger,
consolidation or succession pursuant to this Section to the Rating Agency, the
Trustee and the Noteholders, (2) for so long as the Notes are outstanding, shall
receive from the Rating Agency a letter to the effect that such merger,
consolidation or succession will not result in a qualification, downgrading or
withdrawal of the then current rating of the Notes, (3) shall obtain an Opinion
of Counsel addressed to and approved by the Trustee that such merger,
consolidation or succession complies with the terms hereof, and (4) shall
receive from the Majority Noteholders their prior written consent to such
merger, consolidation or succession, absent which consent, the Issuer shall not
become a party to such merger, consolidation or succession.
(b) Certain Limitations.
(i) The business, activities and purpose of the Issuer
shall be limited as specified in its Operating
Agreement.
(ii) [reserved]
(iii) The Issuer shall not issue unsecured notes or
otherwise borrow money, or otherwise grant any
consensual Lien in favor of any Person (other than
the Lien granted pursuant hereto) absent the prior
written consent of the Majority Noteholders.
(c) Unanimous Consent. Notwithstanding any other provision of this
Section and any provision of law, the Issuer shall not do any of the following
without the affirmative vote of its Independent Manager as such term is defined
in the Operating Agreement.
(i) (A) dissolve or liquidate, in whole or in part, or
institute proceedings to be adjudicated bankrupt or
insolvent, (B) consent to the institution of
bankruptcy or insolvency proceedings against it, (C)
file a petition seeking or consent to reorganization
or relief under any applicable federal or state law
relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of
the Issuer or a substantial part of its property, (E)
make any assignment for the benefit of creditors, (F)
admit in writing its inability to pay its debts
generally as they become due, or (G) take any action
in furtherance of the actions set forth in clauses
(A) through (F) above; or
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(ii) merge or consolidate with or into any other person or
entity or sell or lease its property or all or
substantially all of its assets to any person or
entity; or
(iii) modify any provision of its Certificate of Formation
or Operating Agreement.
SECTION 7.05. RESERVED.
SECTION 7.06. ISSUER MAY NOT OWN NOTES.
The Issuer may not become the owner or pledgee of one or more of the
Notes. Any Person controlling, controlled by or under common control with the
Issuer may, in its individual or any other capacity, become the owner or pledgee
of one or more Notes with the same rights as it would have if it were not an
affiliate of the Issuer, except as otherwise specifically provided in the
definition of the term "Noteholder." The Notes so owned by or pledged to such
controlling or commonly controlled Person shall have an equal and proportionate
benefit under the provisions of this Indenture, without preference, priority or
distinction as among any of the Notes, except as set forth herein with respect
to, among other things, rights to vote, consent or give directions to the
Trustee as a Noteholder.
SECTION 7.07. COVENANTS OF ISSUER.
(a) Operating Agreement and Certificate of Formation. The Issuer
hereby covenants not to change, or agree to any change of, its Operating
Agreement or Certificate of Formation without (i) notice to the Trustee and the
Rating Agency, and (ii) the prior written consent of the Majority Noteholders.
(b) Merger of the Issuer, Asset Sales and Purchases. Without the
prior written consent of the Majority Noteholders, the Issuer shall not merge
with or into, or transfer or sell all or substantially all of its assets to, or
buy all or substantially all the assets of, any person or admit any new members.
(c) Preservation of Existence. The Issuer hereby covenants to do
or cause to be done all things necessary on its part to preserve and keep in
full force and effect its existence as a limited liability company, and to
maintain each of its licenses, approvals, permits, registrations or
qualifications in all jurisdictions in which its ownership or lease of property
or the conduct of its business requires such licenses, approvals, registrations
or qualifications, except for failures to maintain any such licenses, approvals,
registrations or qualifications which, individually or in the aggregate, would
not have a material adverse effect on the ability of Issuer to perform its
obligations hereunder or under any of the other Transaction Documents.
(d) Compliance with Laws. The Issuer hereby covenants to comply in
all material respects with all applicable laws, rules and regulations and orders
of any governmental authority, the noncompliance with which would have a
material adverse effect on the business, financial condition or results of
operations of the Issuer or on the ability of the Issuer to repay the Notes, or
perform any of its other obligations under this Indenture or the other
Transaction Documents.
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(e) Payment of Taxes. The Issuer hereby covenants to pay and
discharge promptly or cause to be paid and discharged promptly all taxes,
assessments and governmental charges or levies imposed upon the Issuer or upon
its income and profits, or upon any of its property or any part thereof, before
the same shall become in default, provided that the Issuer shall not be required
to pay and discharge any such tax, assessment, charge or levy so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Issuer shall have set aside on its books adequate reserves
with respect to any such tax, assessments, charge or levy so contested, or so
long as the failure to pay any such tax, assessment, charge or levy would not
have a material adverse effect on the ability of the Issuer to perform its
obligations hereunder.
(f) Exercise of Rights Under the Transaction Documents. The Issuer
hereby covenants to enforce and exercise its rights as the Purchaser under the
Receivables Contribution Agreement and take such other action in connection with
the Transaction Documents as may be appropriate or desirable, to maximize the
collection of amounts payable to the Trust Estate.
(g) Investments. The Issuer hereby covenants that it will not,
without the prior written consent of the Majority Noteholders, acquire or hold
any indebtedness for borrowed money of another person, or any capital stock,
debentures, partnership interests or other ownership interests or other
securities of any Person, other than Permitted Investments as provided hereunder
and the Receivables acquired under any Receivables Contribution Agreement.
(h) Keeping Records and Books of Account. The Issuer hereby
covenants and agrees to maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate records
evidencing the Receivables in the event of the destruction or loss of the
originals thereof) and keep and maintain, all documents, books, records and
other information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the daily
identification of all collections with respect to, and adjustments of amounts
payable under, each Receivable).
(i) Benefit Plan. The Issuer hereby covenants and agrees to comply
in all material respects with the provisions of ERISA, the Code, and all other
applicable laws, and the regulations and interpretations thereunder to the
extent applicable, with respect to each Benefit Plan. The Issuer covenants that
it will not, and it will cause all ERISA Affiliates to not:
(i) engage in any non-exempt prohibited transaction
(within the meaning of Code Section 4975 or ERISA
Section 406) with respect to any Benefit Plan which
would result in a material liability to the Issuer;
(ii) permit to exist any material accumulated funding
deficiency as defined in Section 302(a) of ERISA and
Section 412(a) of the Code, with respect to any
Benefit Plan which is subject to Section 302(q) of
ERISA or 412 of the Code;
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(iii) terminate, amend or change any Benefit Plan of the
Issuer or any ERISA Affiliate if such termination
would result in any material liability to the Issuer
or an ERISA Affiliate;
(iv) create any defined benefit plan (as defined in
ERISA); or
(v) take or fail to take any other action which could
reasonably be expected to result in material
liability to the Issuer or any ERISA Affiliate under
ERISA, the Code or any other laws applicable to
employees or benefits.
(j) No Release. The Issuer shall not take any action and shall use
its best efforts not to permit any action to be taken by others that would
release any Person from any of such Person's covenants or obligations under any
document, instrument or agreement included in the Trust Estate, or which would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such document, instrument or
agreement.
(k) Separate Identity. The Issuer hereby covenants and agrees to
take all actions required to maintain the Issuer's status as a separate legal
entity. Without limiting the foregoing, the Issuer shall comply with the
covenants in Section 7.01(y).
(l) Compliance with all Transaction Documents. The Issuer hereby
covenants and agrees to comply in all respects with the terms of, employ the
procedures outlined in and enforce the obligations of the parties to all of the
Transaction Documents to which the Issuer is a party, and take all such action
to such end as may be from time to time reasonably requested by the Trustee,
and/or the Majority Noteholders, maintain all such Transaction Documents in full
force and effect and make to the parties thereto such reasonable demands and
requests for information and reports or for action as the Issuer is entitled to
make thereunder and as may be from time to time reasonably requested by the
Trustee.
(m) No Sales, Liens, Etc. Against Receivables and Trust Property.
The Issuer hereby covenants and agrees, except for releases specifically
permitted hereunder, not to sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist, any Lien (other than the
Lien created hereby) upon or with respect to, any Receivables or Trust Estate,
or any interest in either thereof, or upon or with respect to any Account, or
assign any right to receive income in respect thereof; provided, however, that
the existence of the Transferor Interest shall not constitute a breach of this
covenant. The Issuer shall promptly, but in no event later than one (1) Business
Day after a Responsible Officer has obtained actual knowledge thereof, notify
the Trustee of the existence of any Lien on any Receivables or Trust Estate, and
the Issuer shall defend the right, title and interest of each of the Issuer and
the Trustee in, to and under the Receivables and Trust Estate, against all
claims of third parties.
(n) No Change in Business. The Issuer covenants that it shall not
make any change in the character of its business.
(o) No Change in Name, Etc. The Issuer covenants that it shall not
make any change to its company name, or use any trade names, fictitious names,
assumed names or "doing business as" names.
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(p) No Institution of Insolvency Proceedings. The Issuer covenants
that it shall not institute Insolvency Proceedings with respect to the Issuer or
any Affiliate thereof or consent to the institution of Insolvency Proceedings
against the Issuer or any Affiliate thereof or take any action in furtherance of
any such action, or seek dissolution or liquidation in whole or in part of the
Issuer or any Affiliate thereof.
(q) No Change in Chief Executive Office or Location of Records.
The Issuer covenants that it will comply with the representation in Section
7.01(r). As of each Funding Date and any other date of Grant, each Receivable
File shall be kept by a Custodian at its office as described in Section 2.05(b),
or at such other office permitted pursuant to Section 2.05(b).
(r) Access to Certain Documentation and Information.
Notwithstanding anything to the contrary contained in Section 3.05, Section
2.05, this Section 7.07(r) or in any other Section hereof, the Issuer, on
reasonable prior notice, shall permit any representative of the Trustee or any
Interested Noteholder, including, without limitation, independent certified
public accountants selected by the Trustee or such Interested Noteholder, as the
case may be, during the Issuer's normal business hours, to examine all the books
of account, records, reports and other papers of the Issuer relating to the
Assets and the Receivables, to make copies and extracts therefrom, and to
discuss its affairs, finances and accounts relating to the Assets and the
Receivables with its officers, employees and independent public accountants (and
by this provision the Issuer hereby authorizes said accountants to discuss with
such representatives such affairs, finances and accounts), all at such times and
as often as reasonably may be requested. Unless an Event of Default or a Funding
Termination Event that has not been waived by the Majority Noteholders shall
have occurred, or there is an Interest Carryover Shortfall or the Notes have
been downgraded below the ratings assigned on the Closing Date, any
out-of-pocket costs and expenses incident to the exercise by the Trustee or any
Interested Noteholder of any right under this Section 7.07(r) shall be borne by
the Interested Noteholder. In the event that such right is exercised (i)
following the occurrence of a Funding Termination Event that has not been waived
by the Majority Noteholders, (ii) following the occurrence of an Event of
Default that has not been waived by the Majority Noteholders, (iii) while there
is an Interest Carryover Shortfall or (iv) while the Notes have been downgraded
below the ratings assigned on the Closing Date, such out-of-pocket costs and
expenses shall be borne by the Issuer, or if the Issuer does not pay such
expenses within 60 days, then by the Trust Estate. The parties hereto
acknowledge that the Trustee shall not exercise any right pursuant to this
Section 7.07(r) prior to any event set forth in the preceding sentence unless
directed to do so by any Interested Noteholder, and the Trustee shall have no
liability for acting in accordance with this sentence. Prior to any such
payment, the Issuer shall be provided with commercially reasonable documentation
of such costs and expense. Notwithstanding anything contained in Section 3.05 or
this Section 7.07(r) to the contrary, in no event shall the books of account,
records, reports and other papers of OAC or the Issuer relating to the Assets
and the Receivables be audited by independent certified public accountants at
the direction of the Trustee or any Interested Noteholder pursuant to the
exercise of any right under this Section 3.05 or this Section 7.07(r) more than
two times during any 12-month period, unless (i) a Funding Termination Event
that has not been waived by the Majority Noteholders has occurred during such
12-month period, (ii) an Event of Default has occurred that has not been waived
by the Majority Noteholders during such 12-month period, (iii) there is an
Interest Carryover Shortfall or (iv) the Notes have been downgraded below the
ratings assigned on the Closing Date.
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(s) Money for Note Payments To Be Held in Trust. The Issuer shall
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent shall:
(i) hold all sums held by it in respect of payments on
Notes in trust for the benefit of the Noteholders
entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein
provided;
(ii) give the Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) in the making
of any payment; and
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
(t) Protection of Trust Estate. The Issuer shall from time to time
execute and deliver all such supplements and amendments hereto (a copy of which
shall be provided to the Noteholders) and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and shall take such other action as is necessary or advisable to:
(i) Grant more effectively all or any portion of the
Trust Estate;
(ii) maintain or preserve the lien of this Indenture or
carry out more effectively the purposes hereof;
(iii) perfect, publish notice of, or protect the validity
of any Grant made or to be made by this Indenture;
(iv) enforce any of the Receivables or, where appropriate,
any security interest in the Trust Estate and the
proceeds thereof, or
(v) preserve and defend title to the Trust Estate and the
rights of the Trustee and the Noteholders therein
against the claims of all persons and parties.
(u) Investment Company Act. The Issuer shall conduct its
operations in a manner which shall not subject it to registration as an
"investment company" under the Investment Company Act of 1940.
(v) Payment of Review and Renewal Fees. The Issuer shall pay or
cause to be paid to the Rating Agency, the annual rating review and renewal fee
in respect of the Notes, if any.
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ARTICLE VIII
OAC
SECTION 8.01. LIABILITY OF OAC; INDEMNITIES.
(a) Obligations. OAC shall be liable in accordance herewith only
to the extent of the obligations specifically undertaken by OAC under this
Indenture and shall have no other obligations or liabilities under this
Indenture. Such obligations shall include the following:
(i) OAC shall indemnify, defend and hold harmless the
Trustee, the Trust Estate and the Noteholders from
and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent that
such cost, expense, loss, claim, damage or liability
arose out of, and was imposed upon the Trustee, the
Verification Agent, the Paying Agent, the Trust
Estate or any Noteholder through the violation of
law, negligence, willful misfeasance or bad faith of
OAC in connection with the transactions contemplated
by this Indenture and the other Transaction
Documents, or the REMIC Pooling Agreements or by
reason of the breach by OAC of any of its
representations, warranties or covenants hereunder or
under any of the other Transaction Documents or the
REMIC Pooling Agreements; and
(ii) OAC shall indemnify, defend and hold harmless the
Trustee, the Verification Agent and the Paying Agent
from and against all reasonable costs, expenses,
losses, claims, damages and liabilities arising out
of or incurred in connection with the acceptance or
performance of the trusts and duties contained in
this Indenture, except to the extent that such cost
expense, loss, claim, damage or liability: (A) shall
be due to the willful misfeasance, bad faith or
negligence of the Trustee, the Verification Agent or
the Paying Agent, (B) shall arise from the breach by
the Trustee, the Verification Agent or the Paying
Agent of any of its representations or warranties set
forth in Section 10.14, or (C) relates to any tax
other than the taxes with respect to which either the
Issuer or OAC shall be required to indemnify the
Trustee, the Verification Agent, the Noteholders or
the Paying Agent.
(b) Notification and Defense. Promptly after any party seeking
indemnification hereunder (an "Indemnified Party") shall have been served with
the summons or other first legal process or shall have received written notice
of the threat of a claim in respect of which an indemnity may be claimed against
OAC under this Section 8.01, the Indemnified Party shall notify OAC in writing
of the service of such summons, other legal process or written notice, giving
information therein as to the nature and basis of the claim, but failure so to
notify OAC shall not relieve OAC from any liability which it may have hereunder
or otherwise except to the extent that OAC is prejudiced by such failure so to
notify OAC. OAC will be entitled, at its own expense, to participate in the
defense of any such claim or action and, to the extent that it may wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
Indemnified
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Party, and, after notice from OAC to such Indemnified Party to assume the
defense of any such action, OAC will not be liable to such Indemnified Party
under this Section 8.01 for any legal or other expenses subsequently reasonably
incurred by such Indemnified Party in connection with the defense of any such
action other than reasonable costs of investigation unless, (i) the defendants
in any such action include both the Indemnified Party and OAC, and the
Indemnified Party (upon the advice of counsel) shall have reasonably concluded
that there may be legal defenses available to it that are different from or
additional to those available to OAC, or one or more Indemnified Parties, and
which in the reasonable judgment of such counsel are sufficient to create a
conflict of interest for the same counsel to represent both OAC and such
Indemnified Party, (ii) OAC shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action, or (iii) OAC has
authorized the employment of counsel for the Indemnified Party at the expense of
OAC; then, in any such event, described in this Section 8.01, such Indemnified
Party shall have the right to employ its own counsel in such action, and in such
event the reasonable fees and expenses of such counsel shall be borne by OAC;
provided, however, that OAC shall not in connection with any such action or
separate but substantially similar or related actions arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
Indemnified Parties. Each Indemnified Party, as a condition of the indemnity
agreement contained herein, shall use its commercially reasonable efforts to
cooperate with OAC in the defense of any such action or claim. OAC shall not,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses. Indemnification under this Section shall include,
without limitation, reasonable fees and expenses of counsel and expenses of
litigation. If OAC has made any indemnity payments pursuant to this Section and
the recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to OAC, without interest, so long as
no amounts are outstanding to the Trustee, the Verification Agent and the Paying
Agent then due and owing to the Trustee, the Verification Agent and the Paying
Agent by OAC in which event such amounts shall offset such obligations.
(d) Survival. The provisions of this Section shall survive the
resignation or removal of the Trustee, the Verification Agent and the Paying
Agent and the termination of this Indenture.
SECTION 8.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF OAC.
Any corporation (i) into which OAC may be merged or consolidated, (ii)
which may result from any merger, conversion or consolidation to which OAC shall
be a party, or (iii) which may succeed to all or substantially all of the
business or assets of OAC, which corporation in any of the foregoing cases
executes an agreement of assumption to perform every obligation of OAC under
this Indenture, shall be the successor to OAC under this Indenture without the
execution or filing of any paper or any further act on the part of any of the
parties to this Indenture; provided,
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however, that (a) such merger, consolidation or conversion shall not cause an
Event of Default or an event which with notice, the passage of time or both
would become an Event of Default, (b) prior to any such merger, consolidation or
conversion, OAC shall have provided to the Trustee and the Noteholders a letter
from the Rating Agency indicating that such merger, consolidation or conversion
will not result in the qualification, reduction or withdrawal of the then
current rating of the Notes, and (c) prior to any such merger, consolidation or
conversion OAC shall have delivered to the Trustee an Opinion of Counsel to the
effect that such merger, consolidation or conversion complies with the terms of
this Indenture; provided, further, however, that the requirements of clauses (b)
and (c) above shall not apply to the merger of OAC with and into Oakwood
Acceptance Corporation, LLC, a Delaware limited liability company, as described
in Section 4(r) of the Receivables Contribution Agreement. OAC shall provide
notice of any merger, consolidation or succession pursuant to this Section to
the Trustee, the Noteholders and the Rating Agency.
ARTICLE IX
EVENTS OF DEFAULT; REMEDIES
SECTION 9.01. EVENTS OF DEFAULT.
"Event of Default" wherever used herein, means, with respect to Notes
issued hereunder, any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of (i) any interest or any other
amounts due and owing on any Note (which default continues for a period of two
(2) Business Days), or (ii) failure to pay the Notes in full on or before the
Final Payment Date;
(b) any failure by the Issuer to remit or cause to be transferred
to the Trustee any Net Proceeds required to be so remitted under the terms of
the REMIC Pooling Agreements, this Indenture or any of the other Transaction
Documents to which it is a party that continues unremedied for a period of two
(2) Business Days after the date the Issuer withdrew such amounts; or
(c) any failure by the REMIC Servicer to deliver any Monthly REMIC
Servicer Report pursuant to Section 3.02(a) that continues unremedied for a
period of two (2) Business Days after the date such report was due;
(d) if the Issuer shall breach or default in the due observance of
any of the covenants of the Issuer set forth in Sections 2.01(e), 2.04 and 7.07,
other than the covenants contained in Section 7.07(f) or (h) thereof;
(e) if the Issuer shall breach or default in the due observance or
performance of, any other of its covenants in this Indenture, which breach or
default would have a material adverse effect on the rights or interests of the
Noteholders, and such default shall continue for a period of 30 days after the
earlier to occur of (x) actual discovery by a Responsible Officer of the Issuer
or
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the Trustee or (y) the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Issuer;
(f) if any representation or warranty of the Issuer made in this
Indenture, or any certificate or other writing delivered pursuant hereto or in
connection herewith shall prove to have been breached in any material respect as
of the time when the same shall have been made or deemed made, which breach
would have a material adverse effect on the rights or interests of the
Noteholders, and such breach shall continue for a period of 30 days after the
earlier to occur of (x) actual discovery by a Responsible Officer of the Issuer
or the Trustee or (y) the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Issuer;
(g) the entry of a decree or order for relief by a court having
jurisdiction in respect of the Issuer in an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, or any other present or future
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or of any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days;
(h) the commencement by the Issuer of a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other present or
future federal or state bankruptcy, insolvency or similar law, or the consent by
the Issuer to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or of any substantial part of its property or the making by the Issuer of
an assignment for the benefit of creditors or the failure by the Issuer
generally to pay its debts as such debts become due or the taking of any action
by the Issuer in furtherance of any of the foregoing;
(i) (A) any failure of OAC to indemnify the Issuer upon breach of
a representation or warranty as set forth in the Receivables Contribution
Agreement, or (B) any failure on the part of OAC duly to observe or perform any
other covenants or agreements of OAC set forth in the Notes, this Indenture, or
any of the other Transaction Documents which failure (i) would have a material
adverse effect on the rights or interests of the Noteholders, the Trustee or the
Trust Estate and (ii) continues unremedied for a period of 30 days after the
earlier to occur of (x) actual discovery by a Responsible Officer of OAC, the
Issuer or the Trustee (provided that a breach of Section 8(b) of the Receivables
Contribution Agreement shall be deemed to have a material adverse effect on the
rights to the Noteholders) or (y) the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to OAC;
(j) the entry of a decree or order for relief by a court having
jurisdiction in respect of OAC in an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, or any other present or future
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of OAC or of any substantial part of its property, or ordering
the winding up or liquidation of the affairs of OAC and the continuance of any
such decree or order unstayed and in effect for a period of 60 consecutive days;
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(k) the commencement by OAC of a voluntary case under the federal
bankruptcy laws, as now or hereafter in effect, or any other present or future
federal or state bankruptcy, insolvency or similar law, or the consent by OAC to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of OAC or of any
substantial part of its property or the making by OAC of an assignment for the
benefit of creditors or the failure by OAC generally to pay its debts as such
debts become due or the taking of any limited liability company action by OAC in
furtherance of any of the foregoing;
(l) any representation, warranty or certification made by OAC in
this Indenture, or in any other Transaction Document or in any certificate
delivered pursuant to this Indenture or in any other Transaction Document,
proves to have been incorrect in any material respect when made, which (i) would
have a material adverse effect on the rights of the Noteholders or the Trust
Estate, respectively (without regard to any amount deposited in the Reserve
Account), and (ii) if capable of remedy, continues unremedied for a period of 30
days after the earlier to occur of (x) actual discovery by a Responsible Officer
of OAC or (y) the date on which written notice thereof, requiring the same to be
remedied, shall have been given to OAC;
(m) the Internal Revenue Service or the PBGC shall have filed
notice of one or more Adverse Claims against the Issuer or any of their ERISA
Affiliates under ERISA or the Code, which constitutes a Lien on the Receivables
or any other portion of the Trust Estate, and such notice shall have remained in
effect for more than thirty (30) Business Days unless, prior to the expiration
of such period, such Adverse Claims shall have been adequately bonded by such
Issuer, or the ERISA Affiliate (as the case may be).
(n) the Issuer or the Trust Estate shall have become subject to
registration as an "investment company" within the meaning of the Investment
Company Act as determined by a court of competent jurisdiction in a final and
non-appealable order;
(o) [RESERVED];
(p) the Issuer shall fail to own the Trust Estate free and clear
of Liens other than the Liens contemplated hereby or the Trustee shall fail to
have a first priority perfected security interest in the Trust Estate;
(q) OAC suffers the loss or suspension of any license or permit
required for OAC to act as the REMIC Servicer in any State of the United States
(or the District of Columbia) where Obligors are located which, in the aggregate
for such State (or the District of Columbia), accounts for more than $2,000,000
of the current balance of Receivables, unless such loss or suspension is cured
within 60 days after any Responsible Officer of OAC has actual knowledge of such
loss, suspension or material impairment; or
(r) OAC sells, transfers, pledges or otherwise disposes of any of
its membership interest in the Issuer, whether voluntarily or by operation of
law, foreclosure or other enforcement by a Person of its remedies against OAC,
except pursuant to a merger, consolidation or a sale of all or substantially all
the assets of OAC in a transaction not prohibited by this Indenture.
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Upon the occurrence of any such event OAC shall not be relieved from
using its best efforts to perform its obligations in a timely manner in
accordance with the terms of this Indenture and OAC shall provide the Trustee,
the Rating Agency and the Noteholders prompt notice of such failure or delay by
it, together with a description of its effort to so perform its obligations. OAC
shall notify the Trustee in writing of any Event of Default or an event which
with notice, the passage of time or both would become an Event of Default that
it discovers within one Business Day of such discovery. For purposes of this
Section 9.01, the Trustee shall not be deemed to have knowledge of an Event of
Default unless a Responsible Officer of the Trustee assigned to and working in
the Trustee's Corporate Trust Office has actual knowledge thereof or unless
written notice of any event which is in fact such an Event of Default is
received by the Trustee and such notice references the Notes, the Trust Estate
or this Indenture.
SECTION 9.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default of the kind specified in clause (g), (h), (j) or
(k) of Section 9.01 occurs, the unpaid principal amount of all of the Notes
shall automatically become immediately due and payable without notice,
presentment or demand of any kind. If any other Event of Default occurs and is
continuing, then and in every such case, so long as such Event of Default has
not been cured or waived pursuant hereto, (i) the Trustee shall, upon the
direction of the Majority Noteholders, by notice then given in writing to the
Issuer and OAC, declare all of the Notes to be immediately due and payable and
upon on any such declaration such Notes, in an amount equal to the Note Balance
of such Notes, together with accrued and unpaid interest thereon to the date of
such acceleration, and together with all unpaid Trustee Fees, shall become
immediately due and payable and (ii) OAC, upon the written request of the
Majority Noteholders, shall deliver all material, in its control, which may be
necessary for the collection of the Receivables by a party other than OAC to the
Trustee, as the Majority Noteholders may direct in writing to OAC, provided,
however, OAC may retain copies of the above.
At any time after such a declaration of acceleration of maturity of the
Notes has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the
Majority Noteholders by written notice to the Issuer and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all payments of principal of, and interest on, all
Notes and all other amounts which would then be due
hereunder or upon such Notes if the Event of Default
giving rise to such acceleration had not occurred;
and
(ii) all sums paid by the Trustee hereunder and the
reasonable compensation, expenses and disbursements
of the Trustee, its agents and counsel; and
(iii) all Events of Default, other than the nonpayment of
the principal of Notes which have become due solely
by such acceleration, have been cured or waived as
provided in Section 9.14.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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SECTION 9.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) Subject to the following sentence, if an Event of Default
occurs and is continuing, the Trustee shall, at the direction of the Majority
Noteholders, and may in its discretion proceed to protect and enforce its rights
and the rights of the Noteholders by any proceedings the Trustee, being advised
by counsel, deems appropriate to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or enforce any other proper
remedy. Any proceedings brought by the Trustee on behalf of the Noteholders or
by any Noteholder against the Issuer shall be limited to the preservation,
enforcement and foreclosure of the liens, assignments, rights and security
interests under this Indenture and the other Transaction Documents and no
attachment, execution or other suit or process shall be sought, issued or levied
upon any assets, properties or funds of the Issuer, other than the Trust Estate
relative to the Notes in respect of which such Event of Default has occurred. If
there is a foreclosure of any such liens, assignments, rights and security
interests under this Indenture, by private power of sale or otherwise, no
judgment for any deficiency upon the indebtedness represented by the Notes may
be sought or obtained by the Trustee or any Noteholder against the Issuer. The
Trustee shall be entitled to recover the costs and expenses expended by it
pursuant to this Section 9.03 including reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
(b) Promptly upon the occurrence and continuation of an Event of
Default, OAC shall deliver all material and all other information relating to
the Receivables, in its control, which may be necessary for the collection of
the Receivables by a party other than OAC to the Trustee, as the Majority
Noteholders may direct in writing to OAC; provided, however, that OAC may retain
copies of the above.
SECTION 9.04. REMEDIES.
If an Event of Default shall have occurred and be continuing and the
Notes have become due and payable or have been declared due and payable and such
declaration and its consequences have not been rescinded and annulled, the
Trustee (subject to Section 9.17, to the extent applicable) shall, at the
direction of the Majority Noteholders, and may (with the written consent of the
Majority Noteholders) at its discretion, do one or more of the following:
(a) institute proceedings for the collection of all amounts then
payable on the Notes, or under this Indenture or under any of the other
Transaction Documents, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Issuer monies adjudged due, subject in all cases
to the provisions of Section 9.03;
(b) in accordance with Section 9.17, sell the Trust Estate or any
portion thereof or rights or interest therein, at one or more public or private
Sales called and conducted in any manner permitted by law;
(c) institute proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
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(d) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and remedies
of the Trustee or the Noteholders hereunder subject in all cases to the
provisions of Section 9.03; and
(e) refrain from selling the Trust Estate and apply all Available
Funds pursuant to Section 9.07.
SECTION 9.05. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, composition or other judicial
proceeding relative to the Issuer or any other obligor upon any of the Notes or
the property of the Issuer or of such other obligor or their creditors or of
OAC, the Trustee (irrespective of whether the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
any overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise to:
(a) file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Notes and file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Noteholders allowed in such Proceeding, and
(b) collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any receiver,
assignee, trustee, liquidator, or sequestrator (or other similar official) in
any such proceeding is hereby authorized by each Noteholder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Noteholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 10.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting any of the
Notes or the rights of any Noteholder, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such Proceeding.
SECTION 9.06. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or any of the
Notes or any of the other Transaction Documents may be prosecuted and enforced
by the Trustee without the possession of any of the Notes or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust.
Any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses and disbursements of the Trustee, its agents
and counsel, be for the ratable benefit of the Noteholders in respect of which
such judgment has been obtained, in the order of priority specified in Section
4.04(b).
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SECTION 9.07. APPLICATION OF MONEY COLLECTED.
If the Notes have been declared due and payable following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, any money collected by the Trustee with respect to such Notes pursuant
to this Article or otherwise and any other monies that may then be held or
thereafter received by the Trustee as security for such Notes shall, subject to
Section 9.17(e), be treated like Available Funds and applied as provided in
Section 4.04(b).
SECTION 9.08. LIMITATION ON SUITS.
No Noteholder shall have any right to institute any proceedings,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Noteholder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Noteholders representing not less than 25% of the Voting
Interests shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder (and such request shall have not been rescinded);
(c) such Noteholders have offered to the Trustee indemnity in full
against the costs, expenses and liabilities to be incurred in compliance with
such request (the general obligation of an institutional investor that is rated
investment grade being sufficient indemnity);
(d) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 30-day period by the Majority Noteholders;
it being understood and intended that no one or more Noteholders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Noteholders or to obtain or to seek to obtain priority or preference over
any other Noteholders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all the
Noteholders.
SECTION 9.09. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST.
Subject to the provisions in this Indenture (including Section 9.03)
limiting the right to recover amounts due on a Note to recovery from amounts in
the Trust Estate, the Noteholder shall have the right to the extent permitted by
applicable law, which right is absolute and unconditional, to receive payment of
principal of and interest on such Note on the Final Payment Date and to
institute suit for the enforcement of any such payment and such right shall not
be impaired without the consent of such Noteholder.
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SECTION 9.10. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Noteholder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Noteholder, then and in every such case the Issuer, the
Trustee and the Noteholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Noteholders shall continue as though no such proceeding had been instituted.
SECTION 9.11. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 9.12. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Noteholder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Noteholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Noteholders, as the
case may be.
SECTION 9.13. CONTROL BY MAJORITY NOTEHOLDERS.
The Majority Noteholders shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided
that:
(a) such direction shall not be in conflict with any rule of law,
with this Indenture or any inconsistent direction of the Majority Noteholders;
and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction;
provided, however, that, subject to Section 10.01, the Trustee need not take any
action which it determines might (1) be unjustly prejudicial to the Noteholders
not consenting or (2) subject the Trustee to liability, unless the Majority
Noteholders shall have made available to the Trustee security or indemnity
reasonably acceptable to the Trustee against the costs, expenses and liabilities
(including reasonable fees and expenses of counsel) which might reasonably be
expected to be incurred by the Trustee if the Trustee acts in compliance with
the direction of the Majority Noteholders (it being agreed that an unsecured
agreement of indemnity from The Prudential Insurance Company of America shall
suffice as security or indemnity acceptable to the Trustee).
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SECTION 9.14. WAIVER OF PAST DEFAULTS.
The Majority Noteholders may on behalf of the Noteholders of all the
Notes waive any past default hereunder and its consequences, except a default:
(a) in the payment of any installment of principal of or interest
on, any Note; or
(b) in respect of a covenant or provision hereof which under
Section 12.01 cannot be modified or amended without the consent of the
Noteholders.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon. Notwithstanding the
foregoing, the breach of any representation and warranty identified in Sections
7.01(m) and 7.01(ff) through 7.01(ii), inclusive, hereof shall not be waived by
the Majority Noteholders on behalf of the Noteholders, under any circumstances.
SECTION 9.15. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Noteholder by its
acceptance of a Note hereunder shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 9.15 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders
representing more than 30% of the Voting Interests, or to any suit instituted by
any Noteholder for the enforcement of the payment of principal of or interest on
any Note on the Final Maturity Date.
SECTION 9.16. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension of law wherever enacted,
now or at any time hereafter in force, which may affect the covenants in, or the
performance of, this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 9.17. SALE OF TRUST ESTATE.
(a) The power to effect any Sale of any portion of the Trust
Estate pursuant to Section 9.04 shall not be exhausted by any one or more Sales
as to any portion of the Trust Estate remaining unsold, but shall continue
unimpaired until the entire Trust Estate shall have been sold or all amounts
payable on the Notes and under this Indenture with respect thereto shall
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have been paid. The Trustee may from time to time postpone any public Sale by
public announcement made at the time and place of such Sale.
(b) To the extent permitted by law, the Trustee shall not in any
private Sale sell or otherwise dispose of the Trust Estate, or any portion
thereof, unless the Majority Noteholders shall consent to, or direct the Trustee
to make such Sale.
The purchase by the Trustee of all or any portion of the Trust Estate
at a private Sale shall not be deemed a Sale or disposition thereof for purposes
of this Section 9.17(b).
(c) Unless the Majority Noteholders have otherwise consented or
directed the Trustee, at any public Sale of all or any portion of the Trust
Estate at which a minimum bid equal to or greater than all amounts due to the
Trustee hereunder and the entire amount which would be distributable to the
Noteholders in full payment thereof in accordance with Section 9.07, on the
Payment Date next succeeding the date of such sale, the Trustee shall prevent
such sale and bid an amount at least $1.00 more than the highest other bid in
order to preserve the Trust Estate.
(d) In connection with a Sale of all or any portion of the Trust
Estate:
(i) any of the Noteholders may bid for and purchase the
property offered for Sale, and upon compliance with
the terms of sale may hold, retain and possess and
dispose of such property, without further
accountability;
(ii) the Trustee may bid for and acquire the property
offered for Sale in connection with any public Sale
thereof;
(iii) the Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in
any portion of the Trust Estate in connection with a
Sale thereof;
(iv) the Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuer to transfer and
convey its interest in any portion of the Trust
Estate in connection with a Sale thereof, and to take
all action necessary to effect such Sale; and
(v) no purchaser or transferee at such a Sale shall be
bound to ascertain the Trustee's authority, inquire
into the satisfaction of any conditions precedent or
see to the application of any moneys.
(e) Notwithstanding anything to the contrary in this Indenture, if
an Event of Default has occurred and is continuing and the Notes have become due
and payable or have been declared due and payable and such declaration and its
consequences have not been rescinded and annulled, any proceeds received by the
Trustee with respect to a foreclosure, sale or other realization resulting from
a transfer of the assets of the Trust Estate shall be allocated on a pro rata
basis between the Noteholders and the Issuer in proportion to all amounts due
and owing the Noteholders and the Transferor Interest. The amount, if any, so
allocated to the Issuer shall be paid by the Trustee to or to the order of the
Issuer free and clear of the Lien of this Indenture and the Noteholders shall
have no claim or rights to the amount so allocated.
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SECTION 9.18. ACTION ON NOTES.
The Trustee's right to seek and recover judgment under this Indenture
shall not be affected by the seeking, obtaining or application of any other
relief under or with respect to this Indenture. Neither the Lien of this
Indenture nor any rights or remedies of the Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Trustee against the Issuer or by
the levy of any execution under such judgment upon any portion of the Trust
Estate.
SECTION 9.19. NO RECOURSE TO OTHER TRUST ESTATES OR OTHER ASSETS OF THE
ISSUER.
The Trust Estate granted to the Trustee as security for the Notes
serves as security only for the Notes. Holders of the Notes shall have no
recourse against the trust estate granted as security for any other series of
notes issued by the Issuer, and no judgment against the Issuer for any amount
due with respect to the Notes may be enforced against either the trust estate
securing any other series or any other assets of the Issuer, nor may any
prejudgment lien or other attachment be sought against any such other trust
estate or any other assets of the Issuer.
ARTICLE X
THE TRUSTEE
SECTION 10.01. DUTIES OF TRUSTEE.
(a) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. The Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of this Indenture shall examine them to determine whether they
conform to the requirements of this Indenture provided, however, that the
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, report, document, order or other instrument furnished by
the Issuer, the REMIC Servicer or OAC hereunder. If any such instrument is found
not to conform in any material respect to the requirements of this Indenture,
the Trustee shall notify the Noteholders of such instrument in the event that
the Trustee, after so requesting, does not receive a satisfactorily corrected
instrument.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, its own bad faith or its own willful misfeasance; provided,
however, that:
(i) prior to the occurrence of an Event of Default
actually known to a Responsible Officer of the
Trustee, and after the curing or waiving of all such
Events of Default that may have occurred, the duties
and obligations of the Trustee shall be determined
solely by the express provisions of this
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Indenture, the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, no implied
rights or obligations shall be read into this
Indenture against the Trustee, the permissive right
of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and, in
the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture;
(ii) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible
Officer of the Trustee, unless it shall be proved
that the Trustee was negligent in performing its
duties in accordance with the terms of this
Indenture; and
(iii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to
be taken in good faith in accordance with the
direction or consent of the Majority Noteholders
(unless a different percentage is otherwise
specifically set forth herein with respect to any
applicable action) in each case relating to the time,
method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this
Indenture.
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties under this Indenture, or in the exercise of any of its rights or powers,
if there shall be reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it and none of the provisions contained in this Indenture shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Issuer or the REMIC Servicer.
(e) Except for actions expressly authorized by this Indenture, the
Trustee shall take no action reasonably likely to impair the security interests
created or existing under any Receivable or to impair the value of any
Receivable.
(f) All information obtained by the Trustee regarding the Obligors
and the Receivables, whether upon the exercise of its rights under this
Indenture or otherwise, shall be maintained by the Trustee in confidence and
shall not be disclosed to any other Person, unless such disclosure is required
by this Indenture or any applicable law or regulation.
(g) The Trustee shall not be required to take notice or be deemed
to have notice or knowledge of any default (except a nonpayment under the
Receivables) or an Event of Default (other than a nonpayment under the
Receivables) unless a Responsible Officer of the Trustee has actual notice
thereof. In the absence of receipt of such notice or actual knowledge, the
Trustee may conclusively assume that there is no Event of Default.
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(h) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 10.01, the Trustee shall have no duty
(A) to see to any recording, filing, or depositing of this Indenture or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any re-recording, refiling or
redepositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Estate other than from funds available in the
Note Payment Account, (D) to confirm or verify the contents of any reports or
certificates of the REMIC Servicer or OAC delivered to the Trustee pursuant to
this Indenture believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
SECTION 10.02. TRUSTEE'S CERTIFICATE.
On or as soon as practicable after each date on which the Seller or the
Issuer acquires Removed Receivables, the Trustee, upon receipt of written notice
of such acquisition, shall submit to the Seller or the Issuer, as applicable,
with a copy to each Noteholder, a Trustee's Certificate (substantially in the
form attached hereto as Exhibit B), identifying the acquirer and the Receivables
so acquired, executed by the Trustee and completed as to its date and the date
of this Indenture, and accompanied by a copy of the Monthly REMIC Servicer
Report and the Payment Date Report for the related Collection Period. The
Trustee's Certificate submitted with respect to such Payment Date shall operate,
as of such Payment Date, as an assignment without recourse, representation or
warranty, to the Issuer or the Seller, as the case may be, of all the Trustee's
right, title and interest in and to such Removed Receivable and to the other
property conveyed to the Trust Estate pursuant to Section 2.01 with respect to
such Removed Receivable, and all security and documents relating thereto, such
assignment being an assignment outright and not for security.
SECTION 10.03. TRUSTEE'S RELEASE OF REMOVED RECEIVABLES.
With respect to all Removed Receivables, the Trustee shall, by a
Trustee's Certificate (substantially in the form attached hereto as Exhibit B),
release all the Trustee's right, title and interest in and to each Removed
Receivable and the other property included in the Trust Estate pursuant to
Section 2.01 with respect to such Removed Receivable, and all security and any
documents relating thereto; and the Issuer or the Seller, as applicable, shall
thereupon own each such Removed Receivable, and all such related security and
documents, free of any further obligation to the Trustee or the Noteholders with
respect thereto.
SECTION 10.04. CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 10.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(ii) the Trustee, at the expense of the Trust Estate and payable to
the Trustee pursuant to Section 4.04(b), may consult with
counsel and any advice of counsel or Opinion of Counsel shall
be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it under this
Indenture in good faith and in accordance with such advice of
counsel or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture, or to
institute, conduct or defend any litigation under this
Indenture or in relation to this Indenture, at the request,
order or direction of any of the Noteholders pursuant to the
provisions of this Indenture, unless any such Noteholders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may
be incurred therein or thereby (the general obligation of an
institutional investor that is investment grade rated being
sufficient indemnity); nothing contained in this Indenture
shall, however, relieve the Trustee of the obligations, upon
the occurrence of an Event of Default actually known to a
Responsible Officer of the Trustee (that shall not have been
cured or waived), to exercise such of the rights and powers
vested in it by this Indenture, and to use the same degree of
care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his
or her own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture absent
negligence of its part;
(v) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default that may have
occurred, the Trustee shall not be bound to make any
investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent order, approval, bond or
other paper or document, unless requested in writing to do so
by the Noteholders evidencing not less than 25% of the Voting
Interests; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such cost, expense or liability
as a condition to so proceeding (the general obligation of an
institutional investor that is investment grade rated being
sufficient indemnity); the reasonable expense of every such
examination shall be paid by the Issuer or, if paid by the
Trustee, shall be reimbursed by the Issuer upon demand;
(vi) the Trustee may execute any of the trusts or powers under this
Indenture or perform any duties under this Indenture either
directly or by or through agents or attorneys or a custodian
and shall not be liable or responsible for the misconduct or
negligence of any of its agents or attorneys or a custodian
appointed with due care by the Trustee;
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(vii) the right of the Trustee to perform any discretionary act
enumerated in this Indenture shall not be construed as a duty,
and the Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of such
act;
(viii) the Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Estate created hereby
or the powers granted hereunder; and
(ix) anything in this Indenture to the contrary notwithstanding, in
no event shall the Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Trustee has been
advised of the likelihood of such loss or damage and
regardless of the form of action.
SECTION 10.05. LIMITATION ON TRUSTEE'S LIABILITY.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Notes (other than the certificate of authentication
thereon, as applicable), or of any Receivable or related document. The Trustee
shall have no obligation to perform any of the duties of the Issuer unless
explicitly set forth in this Indenture. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any security interest in any Receivable, or the perfection and
priority of such a security interest or the maintenance of any such perfection
and priority, or for or with respect to the efficacy of the Trust Estate or its
ability to generate the payments to be paid to Noteholders under this Indenture,
including without limitation the existence and contents of any Receivable or any
computer file or other record thereof; the validity of the grant of a security
interest in any Receivable to the Trustee or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Issuer with any covenant or the breach by the
Issuer of any warranty or representation made under this Indenture or in any
related document and the accuracy of any such warranty or representation prior
to the Trustee's receipt of notice or other discovery of any noncompliance
therewith or any breach thereof, any investment of monies by the Issuer or any
loss resulting therefrom (it being understood that the Trustee shall remain
responsible as Trustee for any property that it may hold as part of the Trust
Estate); the acts or omissions of the Issuer; or any action by the Trustee taken
at the instruction of OAC; provided however, that the foregoing shall not
relieve the Trustee of its obligation to perform its duties under this
Indenture. Except with respect to a claim based on the failure of the Trustee to
perform its duties under this Indenture or based on the Trustee's negligence,
willful misconduct or bad faith, no recourse shall be had for any claim based on
any provision of this Indenture, the Notes or any Receivable or assignment
thereof against the institution serving as Trustee in its individual capacity.
The Trustee shall not have any personal obligation, liability or duty whatsoever
to any Noteholder or any other Person with respect to any such claim, and any
such claim shall be asserted solely against the Trust Estate or any indemnitor
who shall furnish indemnity as provided in this Indenture. The Trustee shall not
be accountable for the use or application by the Issuer of the Notes or the
proceeds thereof. The Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing with respect to the Notes or to record this Indenture.
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The Trustee shall have no responsibility to determine whether any
Funding Termination Event specified in clause (e) of the definition of "Funding
Termination Event" has occurred, or to determine whether any of the conditions
precedent to a purchase of Additional Receivables have occurred except to the
extent that a Responsible Officer of Trustee has knowledge that any such
conditions have not been satisfied.
The recitals contained in this Indenture and in the Notes, except the
certificates of authentication on the Notes, shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for their correctness or
completeness. The Trustee makes no representations as to the validity or
condition of any Trust Estate or any part thereof, or as to the title of the
Issuer thereto or as to the security afforded thereby or hereby, or as to the
validity or genuineness of any securities at any time pledged and deposited with
the Trustee hereunder or as to the validity or sufficiency of this Indenture or
the Notes. The Trustee shall not be accountable for the use or application by
the Issuer of the Notes or the proceeds thereof or of any money paid to the
Issuer under any provisions hereof.
The Trustee will not be responsible for any losses incurred in
connection with investments in Permitted Investments made in accordance with the
terms of this Indenture, other than losses arising out of the Trustee's gross
negligence, bad faith or willful misconduct.
SECTION 10.06. TRUSTEE MAY OWN NOTES.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes. The Trustee in its individual or any other capacity
may deal with the Issuer and the Seller in banking transactions, with the same
rights as it would have if it were not the Trustee.
SECTION 10.07. TRUSTEE'S FEES AND EXPENSES.
The Trustee shall be entitled to reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trusts created by this Indenture and in the exercise and performance of any
of the powers and duties of the Trustee under this Indenture, which shall equal
the Trustee Fee, paid as provided in Section 4.04, and payment or reimbursement
for all reasonable expenses and disbursements (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) incurred or made by the Trustee in defense
of any action brought against it in connection with this Indenture except any
such expense or disbursement as may arise from its gross negligence, willful
misfeasance or bad faith or that is the responsibility of Noteholders under this
Indenture (not to exceed $100,000 in the aggregate). Additionally, OAC, pursuant
to Section 8.01, shall indemnify the Trustee with respect to certain matters. In
the event the Trustee Fee and any other expenses or disbursements are unpaid or
unreimbursed under Section 4.04, the Trustee shall not be entitled to payment or
reimbursement from any of the REMIC Trusts or the REMIC Servicer.
SECTION 10.08. INDEMNITY OF TRUSTEE.
Pursuant to Section 4.04(b) of this Agreement, the Trustee and its
agents and employees shall be indemnified by the Trust Estate and held harmless
against any loss, liability, or expense (including reasonable attorney's fees
and expenses) arising out of or incurred in connection with
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the acceptance of performance of the trusts and duties contained in this
Indenture to the extent that (i) the Trustee shall not be indemnified for such
loss, liability or expense by the Issuer; (ii) such loss, liability, or expense
shall not have been incurred by reason of the Trustee's willful misfeasance, bad
faith or negligence; and (iii) such loss, liability or expense shall not have
been incurred by reason of the Trustee's breach of its representations and
warranties pursuant to Sections 10.09 and 10.14.
SECTION 10.09. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
Except as otherwise provided in this Indenture, the Trustee under this
Indenture shall at all times be a bank having its corporate trust office in the
same state (or the District of Columbia or the Commonwealth of Puerto Rico) as
the location of the Corporate Trust Office as specified in this Indenture;
organized and doing business under the laws of such state (or the District of
Columbia or the Commonwealth of Puerto Rico) or the United States; authorized
under such laws to exercise corporate trust powers; having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authorities; and shall have the highest available long-term
unsecured debt rating by the Rating Agency then providing such a rating or be
otherwise acceptable to the Rating Agency and the Majority Noteholders, as
evidenced by a letter to such effect from the Rating Agency (which acceptance
may be evidenced in the form of a letter, dated on or shortly before the Closing
Date, assigning an initial rating to the Notes).
If the Trustee shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 10.10.
SECTION 10.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign and be discharged from the
trusts created by this Indenture by giving at least 60 days' prior written
notice thereof to the Issuer and the Noteholders. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor Trustee acceptable to
the Majority Noteholders by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and have
accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.09 and shall fail to resign after
written request therefor by the Issuer or the Majority Noteholders, or if at any
time the Trustee shall be legally unable to act, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Majority Noteholders may remove the Trustee. If the
Trustee is removed under the authority of the immediately preceding
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sentence, the Issuer shall promptly appoint a successor Trustee acceptable to
the Majority Noteholders (which acceptance shall not be unreasonably withheld),
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, and
pay all fees owed to the outgoing Trustee.
(c) The Majority Noteholders may at any time, remove the Trustee
and appoint a successor with the consent of the Issuer (such consent not to be
unreasonably withheld) by written instrument or instruments, in triplicate,
signed by the Issuer, one complete set of which instruments shall be delivered
to the Issuer, one complete set to the Trustee so removed and one complete set
to the successor so appointed. A copy of such instrument shall be delivered to
the Noteholders and the REMIC Servicer by the Trustee or the Issuer.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee as
provided in Section 10.11. The Issuer shall give the Rating Agency and the
Noteholders notice of any such resignation or removal of the Trustee and
appointment and acceptance of a successor Trustee.
(e) Notwithstanding the foregoing, in the event the Trustee is
removed or resigns, the Verification Agent and Paying Agent shall also be
removed and any successor Trustee shall also be the successor Verification Agent
and Paying Agent.
SECTION 10.11. SUCCESSOR TRUSTEE.
Any successor Trustee appointed as provided in Section 10.10 shall
execute, acknowledge and deliver to the Issuer and to its predecessor Trustee an
instrument accepting such appointment under this Indenture, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Indenture, with like effect as if originally named as
Trustee. The predecessor Trustee shall deliver to the successor Trustee all
documents and statements held by it under this Indenture; and the Issuer and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties and
obligations. No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 10.09. Upon acceptance of appointment
by a successor Trustee as provided in this Section, the Issuer shall mail notice
of the successor of such Trustee under this Indenture to all Noteholders at
their addresses as shown in the Note Register and shall give notice by mail to
the Rating Agency. If the Issuer fails to mail such notice within ten (10) days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of OAC.
SECTION 10.12. MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation (i) into which the Trustee may be merged or
consolidated, (ii) which may result from any merger, conversion, or
consolidation to which the Trustee shall be a party or
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(iii) which may succeed to all or substantially all the corporate trust business
of the Trustee, which corporation executes an agreement of assumption to perform
every obligation of the Trustee under this Indenture, shall be the successor of
the Trustee hereunder, provided such corporation shall be eligible pursuant to
Section 10.09, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. Notice of any such merger shall be given by the Trustee to the
Rating Agency and the Noteholders.
SECTION 10.13. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Issuer and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee, jointly with the Trustee or separate trustee or separate trustees,
of all or any part of the Trust Estate, and to vest in such Person, in such
capacity and for the benefit of the Noteholders, such title to the Trust Estate,
or any part thereof, and, subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the Issuer and the Trustee may
consider necessary or desirable. If the Issuer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
the case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. Each co-trustee or separate
trustee under this Indenture shall be required to meet the terms of eligibility
as a successor trustee pursuant to Section 10.09 but no notice of a successor
Trustee pursuant to Section 10.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 10.11.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred upon and exercised
or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular
act or acts are to be performed, (whether as Trustee under
this Indenture) the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding
of title to the Trust Estate or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no trustee under this Indenture shall be personally liable by
reason of any act or omission of any other trustee under this
Indenture;
(iii) the Issuer and the Trustee acting jointly (or during the
continuation of an Event of Default the Trustee alone) may at
any time accept the resignation of or remove any separate
trustee or co-trustee; and
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(iv) the Trustee shall remain primarily liable for the actions of
any separate trustees and co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Section. Each separate trustee and co-trustee, upon its acceptance of
the rights conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture,
including, but not limited to, every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to, the Trustee.
Each such instrument shall be filed with the Trustee and a copy thereof given to
the Issuer.
Any separate trustee or co-trustee may at any time appoint the Trustee
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Indenture on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee. Notwithstanding anything to the contrary in this Indenture,
the appointment of any separate trustee or co-trustee shall not relieve the
Trustee of its obligations and duties under this Indenture.
SECTION 10.14. REPRESENTATIONS AND WARRANTIES OF TRUSTEE.
The Trustee hereby makes the following representations and warranties
on which the Issuer and the Noteholders are relying:
(i) Organization and Good Standing. The Trustee is a national
banking association duly organized, validly existing and in
good standing;
(ii) Power and Authority. The Trustee has full power, authority and
right to execute, deliver and perform this Indenture and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Indenture;
(iii) No Violation. The execution, delivery and performance by the
Trustee of this Indenture (a) shall not violate any provision
of any law governing the banking and trust powers of the
Trustee or, to the best of the Trustee's knowledge, any order,
writ, judgment, or decree of any court, arbitrator, or
governmental authority applicable to the Trustee or any of its
assets, (b) shall not violate any provision of the charter or
bylaws of the Trustee, and (c) shall not violate any provision
of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any
Lien on any properties included in the Trust Estate pursuant
to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which
violation, default or Lien could reasonably be expected to
materially and adversely affect the Trustee's
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performance or ability to perform its duties under this
Indenture or the transactions contemplated in this Indenture;
(iv) No Authorization Required. The execution, delivery and
performance by the Trustee of this Indenture shall not require
the authorization, consent, or approval of, the giving of
notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or
agency regulating the banking and corporate trust activities
of the Trustee; and
(v) Duly Executed. This Indenture shall have been duly executed
and delivered by the Trustee and shall constitute the legal,
valid, and binding agreement of the Trustee, enforceable in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting creditors' rights generally
or by general principles of equity.
SECTION 10.15. TAX RETURNS.
In the event the Trustee shall be required to file tax returns on
behalf of the Trust Estate, the Issuer shall prepare or shall cause to be
prepared any tax returns required to be filed by the Trust Estate and shall
remit such returns to the Trustee for signature at least five days before such
returns are due to be filed. The Trustee, upon request, shall furnish the Issuer
with all such information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust Estate, and
shall, upon request, execute such returns.
ARTICLE XI
REDEMPTION
SECTION 11.01. REDEMPTION AT THE OPTION OF THE ISSUER; ELECTION TO
REDEEM.
The Issuer shall have the option to redeem the Notes in full on any
Payment Date on or after the Optional Termination Date (such Payment Date, a
"Redemption Payment Date"). The election of the Issuer to redeem the Notes
pursuant to this Section shall be evidenced by delivery to the Trustee no later
than thirty days prior to the Payment Date as of which such redemption will be
effected of an Officer's Certificate of the Issuer stating the Issuer's
intention to redeem the Notes and specifying the Redemption Amount therefor. No
prepayment premium or penalty is payable with respect to any such redemption.
SECTION 11.02. DEPOSIT OF REDEMPTION AMOUNT.
In the case of any redemption pursuant to Section 11.01, the Issuer
shall, at or before 11:00 AM Eastern time on the Payment Date on which such
redemption is to be effected, deposit in the Note Payment Account, pursuant to
Section 4.03, an amount equal to the Redemption Amount, and the lien, rights and
interests created hereby shall cease to be of further effect, subject to Section
2.07. The Redemption Amount shall be paid as provided in Section 4.04(b).
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SECTION 11.03. NOTICE OF REDEMPTION BY THE TRUSTEE.
Upon receipt of notice from the Issuer of its election to redeem the
Notes pursuant to Section 11.01 and deposit by the Issuer of the Redemption
Amount pursuant to Section 11.02, the Trustee shall provide notice of redemption
of the Notes ("Redemption Notice") by first class mail, postage prepaid, mailed
no later than the Business Day following the date on which such deposit was
made, to each Noteholder at such Noteholder's address as listed in the Note
Register. Notice of redemption of Notes shall be given by the Trustee in the
name and at the expense of the Issuer, as applicable.
SECTION 11.04. PAYMENT AND SURRENDERING OF NOTES.
The Trustee shall cause to be distributed to the holders thereof on the
Redemption Payment Date the final payment due in connection with each such Note.
In the event that all of the Noteholders shall not surrender their Notes for
final payment and cancellation on or before ten (10) Business Days following
such Redemption Payment Date, the Trustee shall promptly following such date
cause all funds in the Note Payment Account not distributed in final
distribution to Noteholders to be withdrawn therefrom and credited to the
remaining Noteholders by depositing such funds in a separate escrow account for
the benefit of such Noteholders and the Issuer shall give a second written
notice to the remaining Noteholders to surrender their Notes for cancellation
and receive the final payment with respect thereto. If within one year after the
second notice all the Notes shall not have been surrendered for cancellation,
the Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Noteholders concerning surrender of
their Notes, and the cost thereof shall be paid out of the funds on deposit in
such escrow account. Upon the deposit of the Redemption Amount into the Note
Payment Account in accordance with Section 11.02, each Noteholder, will be
deemed to have relinquished any further right to receive payments under this
Indenture and any interest in the Trust Estate. Each Noteholder shall indemnify
and hold harmless the Issuer, the Trustee and any other Person against whom a
claim is asserted in connection with such Noteholder's failure to tender the
Note to the Trustees for cancellation.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. AMENDMENT.
(a) This Indenture may be amended by the Issuer and the Trustee,
with the consent of the Majority Noteholders, to cure any ambiguity, to correct
or supplement any provision in this Indenture which may be inconsistent with any
other provision of this Indenture, to add, change or eliminate any other
provision of this Indenture with respect to matters or questions arising under
this Indenture that shall not be inconsistent with the provisions of this
Indenture or to add or provide for any credit enhancement. Upon satisfaction of
the foregoing conditions the Trustee shall execute such amendment; provided that
the Trustee may decline to execute an amendment which as evidenced by an Opinion
of Counsel at the expense of the party requesting such amendment, adversely
affects in any material respect the rights, duties and obligations of the
Trustee.
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(b) This Indenture may also be amended from time to time by the
Issuer and the Trustee, with the consent of the Majority Noteholders (which
consent of any Noteholder given pursuant to this Section or pursuant to any
other provision of this Indenture shall be conclusive and binding on such
Noteholder and on all future holders of such Note and of any Note issued upon
the transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Note), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture, or of modifying in any manner the rights of such Noteholders;
provided, however, that no such amendment shall (i) except as otherwise provided
in Section 12.01(a), reduce in any manner the amount of, or delay the timing of,
any payments that shall be required to be made on any Note or deposits of
amounts to be so paid or the Required Reserve Amount of the Reserve Account
without the consent of each Noteholder (provided that an amendment of the terms
of an Event of Default shall not be deemed to be within the scope of this clause
(i)); or (ii) change the definition or the manner of calculating the interest
accrued on the Notes without the consent of each Noteholder; or (iii) reduce the
aforesaid percentage of the Voting Interest required to consent to any such
amendment, without the consent of each Noteholder. Upon satisfaction of the
foregoing conditions the Trustee shall execute such amendment; provided that the
Trustee may decline to execute an amendment which as evidenced by an Opinion of
Counsel at the expense of the party requesting such amendments, adversely
affects in any material respect the rights, duties and obligations of the
Trustee.
(c) Prior to the execution of any amendment to this Indenture or
consent thereto pursuant to this Section 12.01, the Trustee shall furnish a copy
of such amendment or consent to the Rating Agency, each Noteholder, and each
Rating Agency under the REMIC Trusts each as defined in the related REMIC
Pooling Agreement.
(d) Promptly after the execution of any amendment or consent
thereto pursuant to Section 12.01(b), the Trustee shall furnish a copy of such
amendment or consent to each Noteholder. The manner of obtaining such consents
and of evidencing the authorization by Noteholders of the execution thereof
shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Prior to the execution of any amendment to this Indenture, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
(f) There will be no change in the identity of the Verification
Agent, the Paying Agent, or the Trustee without the prior written consent of the
Majority Noteholders, subject to the rights of the Verification Agent, the
Paying Agent and the Trustee to resign in accordance with the provisions of this
Indenture.
(g) This Indenture may be amended by the Issuer and the Trustee
with the consent of the Majority Noteholders to make any change required to
minimize the possibility of classification of the Issuer as a "publicly traded
partnership" within the meaning of Code Section 7704(b), assuming for purposes
of the foregoing that the Trust Estate were classified as a partnership for
federal or state income tax purposes and not solely as a security device for
such
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purposes. Upon satisfaction of the foregoing conditions the Trustee shall
execute such amendment; provided that the Trustee may decline to execute an
amendment which as evidenced by an Opinion of Counsel adversely affects in any
material respect the rights, duties and obligations of the Trustee. Further,
this Indenture may be amended by the Issuer and the Trustee, with the consent of
the Majority Noteholders to minimize the restrictions on transfers of the Notes
described in Section 6.03(h) if the Issuer, in reliance upon an Opinion of
Counsel delivered to the Trustee, determines that such amendment would not
otherwise result in classification of the Trust Estate or render the Trust
Estate susceptible to classification as a "publicly traded partnership" within
the meaning of Code Section 7704(b) assuming for purposes of the foregoing that
the Trust Estate were classified as a partnership for federal or state income
tax purposes and not solely as a security device for such purposes. Upon
satisfaction of the foregoing conditions the Trustee shall execute such
amendment; provided that the Trustee may decline to execute an amendment which
as evidenced by an Opinion of Counsel at the expense of the party requesting
such amendment, adversely affects in any material respect the rights, duties and
obligations of the Trustee.
SECTION 12.02. PROTECTION OF SECURITY INTEREST IN TRUST ESTATE.
(a) The Issuer shall execute and file such financing statements
and cause to be executed and filed such continuation and other statements, all
in such manner and in such places as may be required by law fully to preserve,
maintain and protect the interests of the Noteholders and the Trustee under this
Indenture in the Receivables and in the proceeds thereof. The Issuer shall
deliver (or cause to be delivered) to the Trustee file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as available
following such filing.
(b) The Issuer shall not change its name, identity or
organizational structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with paragraph
(a) above seriously misleading within the meaning of Section 9-402(7) of the
UCC, unless it shall have given the Trustee and the Noteholders at least thirty
(30) days' prior written notice thereof and shall have filed prior to such
change appropriate amendments to all such previously filed financing statements
or continuation statements.
(c) The Issuer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) after reasonable
prior notice to the Issuer, the reader thereof to know at any time the status of
such Receivable, including payments and recoveries made and payments owing (and
the nature of each, if applicable) and (ii) reconciliation between payments or
recoveries on (or with respect to) each Receivable and the amounts from time to
time deposited in the Accounts (or any of them) in respect of such Receivables.
(d) The Issuer shall maintain its records so that, from and after
the time of the granting of the security interest under this Indenture of the
Receivables to the Trustee, the Issuer's records (including any computer records
and back-up archives) that refer to any Receivables indicate clearly the
interest of the Trustee in such Receivables and that the Receivable is held by
the Trustee on behalf of the Noteholders. Indication of the Trustee's interest
in a Receivable shall be deleted from or modified on the Issuer's records when,
and only when, the Receivable has been paid in full, or released from the lien
hereof pursuant to this Indenture.
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(e) If at any time the Issuer proposes to assign, convey, grant a
security interest in, or otherwise transfer any interest in receivables to any
prospective purchaser, lender or other transferee, the Issuer shall give to such
prospective acquirer, lender or other transferee computer tapes, records or
print-outs (including any restored from back-up archives) that, if they refer in
any manner whatsoever to any Receivable, indicate clearly that such Receivable
is subject to a security interest in favor of the Trustee unless such Receivable
has been paid in full, acquired or assigned pursuant to this Indenture.
(f) The Issuer shall permit the Trustee, any Noteholder and their
respective agents, upon not less than two Business Days' prior written notice
and during normal business hours, to inspect, audit and make copies of and
abstracts from the Issuer's records regarding any Receivables then or previously
included in the Trust Estate. Nothing in this Section shall impair the
obligation of the Issuer to observe any applicable law prohibiting disclosure of
information regarding the Obligors, and the failure of the Issuer to provide
access as provided in this Section as a result of such obligation shall not
constitute a breach of this Section.
(g) Upon request, the Issuer shall furnish to the Trustee, within
three Business Days of such request, a Schedule of Receivables then held as part
of the Trust Estate.
(h) The Issuer shall deliver to the Trustee, promptly after the
execution and delivery of each amendment to any financing statement, an Opinion
of Counsel stating that, in the opinion of such counsel, either (i) all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Trustee in
the Receivables, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (ii) no such action is
necessary to preserve and protect such interest.
SECTION 12.03. LIMITATION OF RIGHTS OF NOTEHOLDERS.
(a) The death or incapacity of any Noteholder shall not operate to
terminate this Indenture or the Trust Estate, nor entitle its legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust
Estate, nor otherwise affect the rights, obligations and liabilities of the
parties to this Indenture or any of them.
(b) No Noteholder shall have any right to vote (except as
expressly provided in this Indenture) or in any manner otherwise control the
operation and management of the Trust Estate, or the obligations of the parties
to this Indenture, nor shall anything set forth in this Indenture, or contained
in the terms of the Notes, be construed so as to constitute the Noteholders from
time to time as partners or members of an association; nor shall any Noteholder
be under any liability to any third person by reason of any action pursuant to
any provision of this Indenture.
SECTION 12.04. GOVERNING LAW.
This Indenture shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflicts of laws
provisions thereof, and the obligations, rights and remedies of the parties
under this Indenture shall be determined in accordance with such laws.
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SECTION 12.05. NOTICES.
All demands, notices and communications under this Indenture shall be
in writing, and either personally delivered, mailed by certified mail, return
receipt requested, or sent by facsimile transmission (provided that a copy
thereof is also promptly mailed as provided in this Section), and shall be
deemed to have been duly given upon receipt (i) in the case of the Issuer at
7800 McCloud Road, Greensboro, NC 27409-9634; (ii) in the case of the Trustee,
at the Corporate Trust Office; and (iii) in the case of the Rating Agency at 55
Water Street, New York, New York 10041. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Indenture shall be conclusively
presumed to have been duly given, whether or not the Noteholder shall receive
such notice. Any notices required to be given to the Initial Noteholders by the
Issuer or the REMIC Servicer shall be deemed given if sent pursuant to the
delivery instructions provided to the Issuer and the REMIC Servicer in writing
by such Initial Noteholders.
SECTION 12.06. SEVERABILITY OF PROVISIONS; COUNTERPARTS.
(a) If any one or more of the covenants, agreements, provisions or
terms of this Indenture shall be for any reason whatsoever held invalid or
unenforceable in any jurisdiction, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Indenture and shall in no way affect the validity or
enforceability of the other provisions of this Indenture or the Notes, or the
rights of the Noteholders.
(b) This Indenture may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute but one and the same instrument.
SECTION 12.07. ASSIGNMENT.
Notwithstanding anything to the contrary contained in this Indenture,
except as provided in Sections 7.04 and 8.02, this Indenture may not be assigned
by the Issuer without the prior written consent of the Noteholders evidencing
not less than 66-2/3% of the Voting Interests.
SECTION 12.08. NO PETITION.
Each of OAC and the Trustee covenants and agrees that prior to the date
which is one year and one day after the termination of this Indenture, it will
not institute against, or join any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or similar
law. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit
the Trustee from filing proofs of claim or otherwise participating in any such
proceeding instituted by another person. This Section 12.08 shall survive the
termination of this Indenture or the termination of the Trustee, as the case may
be, under this Indenture.
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SECTION 12.09. NOTEHOLDER DIRECTION.
Notwithstanding anything to the contrary contained in this Indenture,
provided the Trustee has sent out notices to Noteholders in accordance with this
Indenture, the Trustee may act as directed by a majority of the outstanding
Noteholders (but only to the extent the Noteholders are entitled under this
Indenture to so direct the Trustee with respect to such action) responding in
writing to the request contained in such notice; provided, however, that
Noteholders representing at least 66-2/3% of the outstanding principal balance
of the Notes as of the time such notice is sent to Noteholders must have
responded to such notice from the Trustee. In addition, the Trustee shall not
have any liability to any Noteholder with respect to any action taken pursuant
to such notice if the Noteholder does not respond to such notice within the time
period set forth in such Notice.
SECTION 12.10. NO SUBSTANTIVE REVIEW OF COMPLIANCE DOCUMENTS.
Other than as specifically set forth in this Indenture, any reports,
information or other documents provided to the Trustee are for purposes only of
enabling the sending party to comply with its document delivery requirements
hereunder and the Trustee's receipt of any such information shall not constitute
constructive or actual notice of any information contained therein or
determinable from any information contained therein, including the Issuer's or
OAC's compliance with any of its covenants, representations or warranties
hereunder.
SECTION 12.11. PREVENTION OF TRADING OF NOTES.
The Issuer shall, to the extent practicable and in an effort to reduce
the likelihood of classification of the Trust Estate as "publicly traded
partnership" (within the meaning of Code Section 7704(b)), assuming that the
Trust Estate were classified as a partnership for federal or state income tax
purposes and not solely as a security device for such purposes, take all steps
necessary to prevent the trading of Notes on an "established securities market"
(within the meaning of United States Treasury Regulations Section 1.7704-1(b))
or other trading of Notes that is comparable, economically, to trading on an
"established securities market."
* * * *
[signatures appear on next page]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed by their respective officers as of the day and year first above
written.
OAKWOOD ADVANCE RECEIVABLES COMPANY, L.L.C.,
as Issuer
By: /s/ Dennis Hazelrigg
-------------------------------------
Name: Dennis Hazelrigg
Title: President
OAKWOOD ACCEPTANCE CORPORATION,
individually and as REMIC Servicer
By: /s/ Douglas R. Muir
-------------------------------------
Name: Douglas R. Muir
Title: Vice President
THE CHASE MANHATTAN BANK, as Trustee, as
Verification Agent and as Paying Agent
By: /s/ Kevin Crombie
-------------------------------------
Name: Kevin Crombie
Title: Asst. Vice President
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[Schedules and Exhibits Omitted.]