OAKWOOD MORTGAGE INVESTORS, INC.
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PASS-THROUGH CERTIFICATES
(ISSUABLE IN SERIES)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
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MAY 1999
Oakwood Mortgage Investors, Inc., a Nevada corporation (the "Company"),
proposes to sell Pass-Through Certificates ("Certificates") in various series
(each a "Series"), in one or more offerings on terms to be determined at the
time of sale, each to be issued by a separate trust (a "Trust") under a pooling
and servicing agreement for such Series that incorporates by reference standard
terms (such agreement collectively with such standard terms, the "Pooling and
Servicing Agreement"), among the Company, Oakwood Acceptance Corporation
("OAC"), as servicer (in such capacity, the "Servicer"), and the trustee named
therein (the "Trustee"). The certificates of each Series (the "Certificates")
will represent in the aggregate the entire beneficial ownership interest in a
segregated pool of manufactured housing installment sales contracts
("Contracts") secured by units of manufactured housing ("Manufactured Homes")
and/or mortgage loans ("Mortgage Loans" and, collectively with Contracts,
"Assets") secured by first liens on real estate to which the related
Manufactured Homes are deemed permanently affixed ("Mortgaged Properties").
The Trustee may make one or more elections to have Trust Assets or
portions thereof treated as real estate mortgage investment conduits (each, a
"REMIC") under the Internal Revenue Code of 1986, as amended (the "Code"). In
the event that more than one REMIC is created for a Series, all references
herein to a REMIC shall be deemed to refer to all related REMICs, unless the
context otherwise requires.
The Company will sell, assign and transfer the Assets acquired by it to
the related Trust, all in exchange for the Certificates of the related Series
issued by that Trust. The Assets will have been acquired by the Company from OAC
or from one or more unaffiliated sellers (each, in such capacity, a "Seller"),
in each case pursuant to a sales agreement (each, a "Sales Agreement") between
the Company and the Seller of such Assets. The net proceeds to the Company from
the sale of each Series of the Certificates principally will be used to pay the
purchase price of the Assets acquired for the related Trust.
The Certificates are more fully described in the Registration Statement
(as hereinafter defined). Each Series of Certificates, and any classes of
Certificates within each Series, may vary, among other things, as to number and
types of classes, aggregate principal amount, final stated distribution dates,
the rate or rates of interest accruing thereon, and the allocation, priority and
timing of distributions thereon.
From time to time, the Company may enter into one or more terms
agreements (each, a "Terms Agreement") substantially in the form of the Form of
Terms Agreement attached hereto as Exhibit A, which Terms Agreements provide for
the sale of all or a portion of certain classes of a Series of Certificates
(such certificates to be so purchased being herein collectively referred to as
the "Underwritten Certificates") to the underwriters named in the related
underwriting agreement (the "Underwriters"). The standard provisions set forth
herein are to be incorporated by reference in any such Terms Agreement. A Terms
Agreement, including the provisions hereof incorporated therein by reference, is
herein referred to as an "Underwriting Agreement" or an "Agreement." Unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings assigned to them in the Terms Agreement into which the standard
provisions are incorporated and if not defined therein shall have the meanings
assigned to them in the related Pooling and Servicing Agreement.
The Terms Agreement relating to each offering of Underwritten
Certificates shall specify, among other things, the principal amount of the
Underwritten Certificates to be issued and their terms not otherwise specified
in the related Pooling and Servicing Agreement, the price or prices at which the
Underwritten Certificates are to be purchased by the Underwriters from the
Company, the initial public offering price or the method by which the price at
which such Underwritten Certificates are to be sold will be determined, the
names of the firms, if any, designated as representatives of the Underwriters
(the "Representatives"), and the principal amount of the Underwritten
Certificates to be purchased by each Underwriter, and shall set forth the date,
time and manner of delivery of the Underwritten Certificates and payment
therefor.
The Company is a limited-purpose finance corporation and wholly-owned
subsidiary of OAC, which in turn, is a wholly-owned subsidiary of Oakwood Homes
Corporation, a North Carolina corporation.
1. Representations and Warranties. (a) The Company and OAC represent
and warrant to, and agree
with, each Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 for
the registration of the Underwritten Certificates under the Securities
Act of 1933, as amended (the "Act"), which registration statement has
become effective, and has filed such amendments thereto and such
additional registration statements as may have been required to the
date hereof. Such registration statement, as amended at the date
hereof, meets the requirements set forth in Rule 415 under the Act and
complies in all other material respects with the Act and the rules and
regulations thereunder. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement to the form
of prospectus included in such registration statement relating to the
Underwritten Certificates and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as amended at
the date hereof, is hereinafter called the "Registration Statement;"
the latter of such prospectus in the form in which it appears in the
Registration Statement or in the form most recently revised and filed
with the Commission pursuant to Rule 424 is hereinafter called the
"Basic Prospectus;" and the form of prospectus supplement specifically
relating to the Underwritten Certificates, in the form in which it
shall be first filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented and the information,
if any, filed with the Commission pursuant to the Exchange Act and
incorporated by reference therein) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 or, prior to the effective
date of the Registration Statement, pursuant to Rule 402(a), 424(a) or
430A, is hereinafter called a "Preliminary Final Prospectus." Any
supplement to the Basic Prospectus specifically relating to the
Underwritten Certificates shall be referred to by itself as the
"Prospectus Supplement."
(ii) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 under the Act, when,
prior to the Closing Date (as hereinafter defined), any amendment to
the Registration Statement becomes effective, when any supplement to
the Final Prospectus is filed with the Commission, and at the Closing
Date, (A) the Registration Statement, as amended as of any such time,
and the Final Prospectus, as amended or supplemented as of any such
time, complies and will comply in all material respects with the
applicable requirements of the Act and the rules and regulations
thereunder and (B) the Registration Statement, as amended as of any
such time, does not contain and will not contain any untrue statement
of a material fact and does not omit and will not omit to state any
material fact required to be stated therein or necessary in order to
make the statements made therein not misleading and the Final
Prospectus, as amended or supplemented as of any such time, does not
and will not include an untrue statement of a material fact and does
not omit and will not omit to state a material fact necessary in order
to make the statements made therein, in light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
(iii) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 under the Act, when,
prior to the Closing Date, any amendment to the Registration Statement
becomes effective, when any supplement to the Final Prospectus is filed
with the Commission, and at the Closing Date, there has not and will
not have been (A) any request by the Commission for any further
amendment of the Registration Statement or the Final Prospectus or for
any additional information, (B) any issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the initiation or threat of any proceeding for that purpose, or (C)
any notification with respect to the suspension of the qualification of
the Underwritten Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
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(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Nevada with full power and authority (corporate and other) to own
its properties and to conduct its business as it is now conducted and
as described in the Final Prospectus, and to enter into and perform its
obligations under the Agreement, each related Sales Agreement and the
related Pooling and Servicing Agreement, and has qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction that requires such qualification wherein it
owns or leases material properties, except where the failure so to
qualify would not have a material adverse effect on the Company. The
Company holds all material licenses, certificates, franchises, and
permits from all governmental authorities necessary for the conduct of
its business as it is now conducted and as described in the Final
Prospectus, and has received no notice of proceedings relating to the
revocation of any such license, certificate or permit, that, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would affect materially and adversely the conduct of the
business, results of operations, net worth or condition (financial or
otherwise) of the Company.
(v) The execution of the Terms Agreement, each related Sales
Agreement and the related Pooling and Servicing Agreement are within
the corporate power of the Company. The Agreement has been and as of
the Closing Date the related Pooling and Servicing Agreement and each
related Sales Agreement will have been, duly and validly authorized,
executed and delivered by the Company, and assuming the valid
authorization, execution and delivery by the other parties thereto,
each constitutes, or will constitute, a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and to general principles of equity, regardless of whether such
enforcement is sought in a proceeding in equity or at law, and except
that with respect to the Agreement the provisions relating to
indemnification of the Underwriters may be unenforceable as against
public policy.
(vi) Neither the issuance and sale of the Underwritten
Certificates, nor the execution and delivery by the Company of this
Agreement, any related Sales Agreement or the related Pooling and
Servicing Agreement, nor the consummation by the Company of any of the
transactions herein or therein contemplated, nor compliance by the
Company with the provisions hereof or thereof, will (A) conflict with
or result in a breach of, or constitute a default under, any of the
provisions of the articles of incorporation or by-laws of the Company
or any law, governmental rule or regulation or any judgment, decree or
order binding on the Company or any of its properties, or any of the
provisions of any indenture, mortgage, deed of trust, contract or other
instrument to which the Company is a party or by which it is bound, or
(B) result in the creation or imposition of any lien, charge, or
encumbrance upon any of its properties pursuant to the terms of any
such indenture, mortgage, deed of trust, contract or other instrument.
(vii) No filing or registration with, notice to, qualification
of or with, or consent, approval, authorization or order or other
action of any person, corporation or other organization or of any
court, supervisory or governmental authority or agency is required for
the consummation by the Company of the transactions contemplated by
this Agreement or the related Pooling and Servicing Agreement except
such as have been, or will have been prior to the Closing Date,
obtained under the Act, or state securities laws or "Blue Sky" laws, or
from the National Association of Securities Dealers, Inc. in connection
with the purchase and distribution of the Underwritten Certificates by
the Underwriters, or any recordations of the assignment of the related
Mortgage Loans to the Trustee pursuant to the related Pooling and
Servicing Agreement that have not yet been completed.
(viii) There are no actions, suits or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the
Company, threatened, before any court, administrative agency or other
tribunal (A) asserting the invalidity of the Agreement, the related
Pooling and Servicing Agreement, any related Sales Agreement or the
Certificates of the related Series, (B) seeking to prevent the issuance
of the Certificates of the related Series or the consummation of any of
the transactions contemplated by the
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Agreement, any related Sales Agreement or the related Pooling and
Servicing Agreement, (C) which might materially and adversely affect
the business, operations, financial condition (including, if
applicable, on a consolidated basis), properties or assets of the
Company, performance by the Company of its obligations under, or the
validity or enforceability of, the Agreement, the related Pooling and
Servicing Agreement, any related Sales Agreement, or the validity or
enforceability of the Certificates of the related Series or (D) seeking
to affect adversely the federal or state income tax attributes of the
Underwritten Certificates as described in the Final Prospectus.
(ix) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there has
not been any material adverse change or development involving a
prospective material adverse change in the business, operations,
financial condition, properties or assets of the Company.
(x) The Underwritten Certificates and Pooling and Servicing
Agreement will conform in all material respects to the descriptions
thereof contained in the Final Prospectus, and the Underwritten
Certificates, when duly and validly executed and authenticated by the
Trustee and delivered to and paid for by the Underwriters as provided
herein, will be validly issued and entitled to the benefits of the
related Pooling and Servicing Agreement, and will be binding
obligations of the Trust to the extent provided in the related Pooling
and Servicing Agreement.
(xi) At the time of execution of the related Pooling and
Servicing Agreement, the Company will own the Assets being transferred
to the Trustee pursuant to the related Pooling and Servicing Agreement,
free and clear of any lien, adverse claim, mortgage, charge, pledge or
other encumbrance or security interest, and will not have assigned to
any other person any of its right, title or interest in such Assets,
and, upon the execution of the related Pooling and Servicing Agreement,
the Company will have transferred all its right, title and interest in
such Assets to the Trustee, PROVIDED that the Company will not be
deemed to be in breach of this representation and warranty to the
extent that a court of competent jurisdiction holds that at the time of
the execution of the related Pooling and Servicing Agreement the
Company had a first priority perfected security interest in such Assets
or that the Company granted to the Trust a first priority perfected
security interest in such Assets.
(xii) Under generally accepted accounting principles, the
Company will report its transfer of the Assets to the Trustee pursuant
to the related Pooling and Servicing Agreement and the sale of the
Certificates of the related Series as a sale of its interest in such
Assets. The Company has been advised by its independent certified
public accountants that it concurs with such treatment under generally
accepted accounting principles. For federal income tax purposes, the
Company will treat the transfer of the Assets to the Trustee and the
sale of the Underwritten Certificates either as a transaction in which
it acts as the agent of one or more Sellers or as a sale of its
interest in the Assets.
(xiii) As of the Closing Date, the Assets will be duly and
validly assigned to the Trustee or its nominee, UCC-1 financing
statements describing any Contracts as collateral and (i) naming the
Seller as "debtor," the Company as "secured party" and the Trustee as
"assignee" and (ii) naming the Company as "debtor" and the Trustee as
"secured party," will be filed in all filing offices where such filing
is necessary to perfect the Trustee's ownership or security interest in
any related Contracts, and any related Mortgage Notes will be endorsed
without recourse to the Trustee or to its nominee and delivered to the
Trustee or to an agent on its behalf and, where required in order to
transfer all right, title and interest to a Mortgage Loan. Upon
completion of the aforementioned actions, upon the stamping of the face
of each related Contract with a legend giving notice of the assignment
of such Contract to the Trustee, and, where required in order to
transfer a lien on a Mortgaged Property, upon the recordation of
assignments to the Trustee of any related Mortgages in the public
records in which such Mortgages shall have been recorded (which
recordation shall be effected unless the Underwriters receive an
opinion of counsel satisfactory to them (at
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the Company's expense) that such recording is not required under
applicable law to perfect the Trustee's security interest in the
related Mortgaged Property), the Trustee will own each related Asset,
subject to no prior lien, mortgage, security interest, pledge, charge
or other encumbrance, except as permitted under the related Pooling and
Servicing Agreement; PROVIDED THAT the Company will not be deemed to be
in breach of this representation and warranty as to any Asset to the
extent that a court of competent jurisdiction holds that the Trustee
has a first priority perfected security interest in such Asset or that
the Company assigned to the Trust a first priority perfected security
interest in such Asset.
(xiv) As of the Closing Date, any letter of credit or surety
bond included in any accounts or funds constituting part of the Trust
with respect to the Underwritten Certificates will name the Trustee as
the beneficiary thereof and will be delivered to the Trustee, any cash
will be delivered to the Trustee and any Eligible Investments (as
defined in the related Pooling and Servicing Agreement) will be made in
the Trustee's name, and delivered to and/or assigned to the Trustee,
and the Trustee either will own such assets, or have a first priority
perfected security interest therein, in either case subject to no prior
lien, security interest, pledge, charge or other encumbrance.
(xv) Each Seller has been duly incorporated or otherwise
formed and is validly existing and duly qualified under the laws of the
jurisdiction of its incorporation or formation and each jurisdiction
that requires such qualification wherein it owns or leases any material
properties (except where the failure so to qualify would not have a
material adverse effect on such Seller).
(xvi) At the time of the execution and delivery of a Sales
Agreement by each Seller, such execution and delivery by such Seller
will be within the legal power of such Seller and will have been duly
authorized by all necessary action on the part of such Seller; and
neither the execution and delivery of such Sales Agreement by such
Seller, nor the consummation by such Seller of the transactions therein
contemplated, nor compliance with the provisions thereof by such
Seller, will (A) conflict with or result in a breach of, or constitute
a default under, any of the provisions of the articles of
incorporation, by-laws, partnership agreement or other organizational
documents of such Seller, or any law, governmental rule or regulation,
or any judgment, decree or order binding on such Seller or any of its
properties, or any of the provisions of any indenture, mortgage, deed
of trust, contract or other instrument to which such Seller is a party
or by which it is bound, or (B) result in the creation or imposition of
any lien, charge or encumbrance upon any of its properties pursuant to
the terms of any such indenture, mortgage, deed of trust, contract or
other instrument.
(xvii) Each related Sales Agreement, when executed and
delivered as contemplated thereby, will have been duly executed and
delivered by the Seller that is a party thereto, and each will
constitute, when so executed and delivered, a legal, valid and binding
agreement, enforceable against such Seller in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity, regardless of whether such enforcement is sought
in a proceeding in equity or at law, and except that the provisions of
indemnity contained therein may be unenforceable as against public
policy.
(xviii) Under generally accepted accounting principles, each
Seller will report its transfer of the Assets pursuant to its Sales
Agreement as a sale of its interest in such Assets. Each Seller has
been advised by its independent certified public accountants that they
concur with such treatment under generally accepted accounting
principles and, if applicable, regulatory accounting principles. Each
Seller also will so report the transfer in all financial statements and
reports to the regulatory and supervisory agencies and authorities to
which it reports, if any. For federal income tax purposes, each Seller
will treat the transfer of the Assets pursuant to the related Sales
Agreement as a sale of the interest in the Assets represented by the
Certificates of the related Series not held by such Seller and as an
exchange of the remaining interest in the Assets for any Certificates
of such Series retained by such Seller.
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(xix) At the Closing Date, each Contract, Mortgage Note and
Mortgage will constitute a legal, valid and binding instrument,
enforceable against the related Obligor in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally, and to general
principles of equity (whether considered in a proceeding at law or in
equity), and will meet the criteria for selection described in the
Final Prospectus.
(xx) At the Closing Date, any Primary Mortgage Insurance
Policies and Standard Hazard Insurance Policies (as such terms are
defined in the related Pooling and Servicing Agreement) that are
required to be maintained with respect to any of the related Assets
pursuant to the related Pooling and Servicing Agreement will have been
duly and validly authorized, executed and delivered by, and will
constitute legal, valid and binding obligations of the issuers of such
Primary Mortgage Insurance Policies and Standard Hazard Insurance
Policies (collectively, the "Insurers"), as the case may be, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles of
equity, regardless of whether enforcement is sought in a proceeding in
equity or at law.
(xxi) Each Contract and Mortgage Loan was originated by an
entity that met the mortgagee criteria specified in Section 3(a)(41) of
the Securities Exchange Act of 1934 (the "Exchange Act") for the
related Certificates to constitute "mortgage related securities"
(assuming all other requirements of such Section 3(a)(41) are also met
in respect of such Certificate for such Certificates to be "mortgage
related securities" as so defined) at the time of origination of such
Contract or Mortgage Loan.
(xxii) Each of the Underwritten Certificates, when issued,
will constitute a "mortgage related security" as such term is defined
in Section 3(a)(41) of the Exchange Act for so long as such Certificate
is rated in one of the two highest rating categories by a nationally
recognized statistical rating organization.
(xxiii) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement
and the related Pooling and Servicing Agreement and the execution,
delivery and sale of the Underwritten Certificates have been or will be
paid at or prior to the Closing Date.
(xxiv) Neither the Company nor the Trust is, and the issuance
and sale of the Underwritten Certificates in the manner contemplated by
the Final Prospectus will not cause the Company or the Trust to become,
subject to registration or regulation as an "investment company" or an
affiliate of an "investment company" under (and as defined in) the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(xxv) Immediately prior to the delivery of the Underwritten
Certificates to the Underwriters, the Company will own the Underwritten
Certificates free and clear of any lien, adverse claim, pledge,
encumbrance or other security interest, and will not have assigned to
any person any of its right, title or interest in the Underwritten
Certificates, and, upon consummation of the transactions contemplated
in this Agreement, the Company will have transferred all its right,
title and interest in the Underwritten Certificates to the
Underwriters.
(xxvi) At the Closing Date, the representations and warranties
made by the Company in the related Pooling and Servicing Agreement will
be true and correct in all material respects.
(b) OAC further represents and warrants to, and agrees with, each
Underwriter that:
(i) OAC has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of North
Carolina with full power and authority (corporate and other) to own its
properties and conduct its business as it is now conducted by OAC, and
has qualified to do business as a
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foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties except when the failure to so qualify would
not have a material adverse effect on OAC.
(ii) The execution of the Agreement and the related Sales
Agreement (if applicable) and the related Pooling and Servicing
Agreement are within the corporate power of OAC. This Agreement has
been, and as of the Closing Date the related Sales Agreement (if
applicable) and the related Pooling and Servicing Agreement will have
been, duly and validly authorized, executed and delivered by OAC, and
assuming the valid authorization, execution and delivery of each such
agreement by the other parties thereto, each of such agreements
constitutes a legal, valid and binding obligation of OAC, enforceable
against OAC in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is sought in a proceeding in
equity or at law, and except that the provisions relating to
indemnification of the Underwriters may be unenforceable as against
public policy.
(iii) Neither the issuance and sale of the Underwritten
Certificates, nor the execution and delivery by OAC of this Agreement,
any related Sales Agreement or the related Pooling and Servicing
Agreement, nor the consummation by OAC of any of the transactions
herein or therein contemplated, nor compliance by OAC with the
provisions hereof or thereof, will (A) conflict with or result in a
breach of, or constitute a default under, any of the provisions of the
articles of incorporation or by-laws of OAC or any law, governmental
rule or regulation or any judgment, decree or order binding on OAC or
any of its properties, or any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which OAC is a
party or by which it is bound, or (B) result in the creation of any
lien, charge, or encumbrance upon any of its properties pursuant to the
terms of any such indenture, mortgage, deed of trust, contract or other
instrument.
(iv) There are no actions, suits or proceedings against, or
investigations of, OAC pending, or, to the knowledge of OAC,
threatened, before any court, administrative agency or other tribunal
(i) asserting the invalidity of the Agreement, the related Pooling and
Servicing Agreement or any related Sales Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by the
Agreement or any related Sales Agreement or the related Pooling and
Servicing Agreement, (iii) which might materially and adversely affect
the business, operations, financial condition (including, if
applicable, on a consolidated basis), properties or assets of OAC,
performance by OAC of its obligations under, or the validity or
enforceability of, the Agreement, the related Pooling and Servicing
Agreement or any related Sales Agreement or (iv) seeking to affect
adversely the federal or state income tax attributes of the
Underwritten Certificates as described in the Final Prospectus.
(v) No filing or registration with, notice to, qualification
of or with, or consent, approval, authorization or order or other
action of any person, corporation or other organization or of any
court, supervisory or governmental authority or agency is required for
the consummation by OAC of the transactions contemplated by this
Agreement or the related Pooling and Servicing Agreement except such as
have been, or will have been prior to the Closing Date, obtained under
the Act, or state securities laws or "Blue Sky" laws, or from the
National Association of Securities Dealers, Inc. in connection with the
purchase and distribution of the Underwritten Certificates by the
Underwriters, or any recordations of the assignment of the related
Mortgage Loans to the Trustee pursuant to the related Pooling and
Servicing Agreement that have not yet been completed.
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2. Purchase and Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties set forth herein, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the applicable purchase prices set forth in the
related Terms Agreement (plus accrued interest as therein set forth),
Underwritten Certificates representing the respective aggregate approximate
principal amounts, notional amounts or percentage interests, as the case may be,
of the various classes of Underwritten Certificates set forth in the Terms
Agreement or opposite such Underwriter's name in an attachment to the Terms
Agreement.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made at the office, on the date and at the time specified
in the related Terms Agreement, which date and time may be postponed by
agreement between the Underwriters and the Company or as provided in Section 10
hereof (such date and time of delivery and payment for the Underwritten
Certificates being herein called the "Closing Date"). Delivery of the
Underwritten Certificates shall be made to the Underwriters against payment by
the Underwriters of the purchase price thereof to or upon the order of the
Company in the type of funds specified in the Terms Agreement. The Underwritten
Certificates shall be registered in such names and in such authorized
denominations as the Underwriters may request in writing not less than two full
business days in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York (or
such other location within the continental United States requested by the
Underwriters), not later than 1:00 p.m. on the business day prior to the Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Underwritten Certificates of such Series for
sale to the public as set forth in the related Final Prospectus.
5. Agreements. (a) The Company covenants and agrees with the several
Underwriters that:
(i) Substantially contemporaneously with the execution of this
Agreement, the Company will prepare the supplement to the Basic
Prospectus setting forth the principal amount of Underwritten
Certificates covered thereby and the material terms thereof, the
initial public offering price of the Underwritten Certificates or the
manner of offering such Underwritten Certificates, the price at which
the Underwritten Certificates are to be purchased by the Underwriters
from the Company, the selling concessions and reallowance, if any, and
such other information as the Underwriters and the Company deem
appropriate in connection with the offering of such Underwritten
Certificates. The Company will not file any amendment or supplement to
the Final Prospectus relating to the Underwritten Certificates unless
the Company has furnished the Underwriters a copy for their review
prior to filing and will not file any such proposed amendment or
supplement to which the Underwriters reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 under the Act and a
report on Form 8-K will be filed with the Commission within 15 days
following the Closing setting forth specific information concerning the
Underwritten Certificates and the related Assets and including, as an
exhibit, a copy of the related Pooling and Servicing Agreement. In
addition, to the extent that any Underwriter (i) has provided
Collateral Term Sheets to the Company that such Underwriter has
provided to a prospective investor, the Company has filed such
Collateral Term Sheets as an Exhibit to Form 8-K within two business
days of its receipt thereof, or (ii) has provided Structural Term
Sheets or Computational Materials to the Company that such Underwriter
has provided to a prospective investor, the Company will file or cause
to be filed with the Commission a report on Form 8-K containing such
Structural Term Sheets and Computational Materials, as soon as
reasonably practicable after the date of the Underwriting Agreement,
but in any event, not later than the date on which the Final Prospectus
is filed with the Commission pursuant to Rule 424 under the Act. The
Company will promptly advise the Underwriters (A) when the Final
Prospectus shall have been filed with the Commission pursuant to Rule
424 and the Form 8-K shall have been filed with the Commission, (B)
when any amendment to the Registration
-8-
Statement shall have become effective, (C) of any request by the
Commission for any amendment of the Registration Statement or the Final
Prospectus or for any additional information, (D) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any
proceeding for that purpose, and (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Underwritten Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or suspension and, if issued, to obtain the withdrawal
thereof as soon as possible.
(ii) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered under the Act,
any event occurs as a result of which, in the opinion of counsel to the
Company or the Underwriters, the Final Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements made
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the rules and regulations
thereunder, the Company will promptly prepare and file with the
Commission, subject to paragraph (i) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and, if such amendment or supplement
is required to be contained in a post-effective amendment of the
Registration Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible and will promptly file all reports and any definitive proxy or
information statements required to be filed by the Company pursuant to
Sections 13, 14 and 15 of the Exchange Act subsequent to the date of
the Prospectus for so long as the delivery of a Prospectus is required
in connection with the offering or sale of the Underwritten
Certificates; PROVIDED, HOWEVER, that any such amendment or update
prepared more than nine months after the Closing Date shall be at the
expense of the Underwriters.
(iii) The Company will furnish to counsel for the
Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date, and to each
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and each such amendment and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any amendments thereof and supplements thereto as the
Underwriters may reasonably request.
(iv) The Company will apply the net proceeds from the sale of
the Underwritten Certificates in the manner set forth in the related
Final Prospectus.
(v) The Company or OAC will pay or cause to be paid all the
fees and disbursements of the Company's counsel and of independent
accountants for the Company relating to legal review, opinions of
counsel for the Company, audits, review of unaudited financial
statements, cold comfort review or otherwise; the costs and expenses of
printing (or otherwise reproducing) and delivering the Agreement, the
related Pooling and Servicing Agreement and the Underwritten
Certificates; the initial fees, costs and expenses of or relating to
the Trustee under the related Pooling and Servicing Agreement and its
counsel; the initial fees, costs and expenses of or relating to any
custodian of the Contracts or Mortgage Loans under a custodial
agreement and such custodian's counsel; the costs and expenses incident
to the preparation, printing, distribution and filing of the
Registration Statement (including exhibits thereto), the Basic
Prospectus, the Preliminary Final Prospectus and the Final Prospectus,
and all amendments of and supplements to the foregoing, and of the
Underwritten Certificates; and the fees of rating agencies. Except as
provided in Section 7 hereof, the Underwriters shall be responsible for
paying all costs and expenses incurred by them in connection with their
purchase and sale of the Underwritten Certificates.
-9-
(vi) The Company will use its best efforts to arrange for the
qualification of the Underwritten Certificates for sale under the laws
of such jurisdictions as the Underwriter may designate in the Terms
Agreement, to maintain such qualifications in effect so long as
required for the distribution of the Underwritten Certificates and to
arrange for the determination of the legality of the Underwritten
Certificates for purchase by investors; PROVIDED, HOWEVER, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject, and PROVIDED FURTHER,
that the Underwriter shall pay all costs and expenses associated
therewith.
(vii) So long as any Underwritten Certificates are
outstanding, the Company will cause the related Servicer or Trustee to
furnish to the Underwriter, as soon as available, a copy of (A) the
annual statement of compliance delivered by the Servicer to the Trustee
under the related Pooling and Servicing Agreement, (B) the annual
independent public accountants' servicing report furnished to the
Trustee pursuant to the related Pooling and Servicing Agreement, (C)
each report, statement or other document regarding the Underwritten
Certificates filed with the Commission under the Exchange Act or mailed
to the holders of the Underwritten Certificates, pursuant to the
related Pooling and Servicing Agreement or otherwise, (D) any reports
provided by certified public accountants pursuant to the related
Pooling and Servicing Agreement regarding the reports, statements or
other documents included in clause (C) above, and (E) from time to
time, such other information concerning the Underwritten Certificates
as the Underwriter may reasonably request and which may be furnished by
the Company or the Servicer without undue expense. In addition, the
Company shall make or cause the Trustee to make generally available to
the holders of the Underwritten Certificates as soon as practicable,
but in any event not later than sixteen months from the date of this
Agreement, an earnings statement of the issuer of the Underwritten
Certificates (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission (including
at the option of the Company, Rule 158).
(viii) Without the consent of the Underwriters, the Company
will not waive any of the conditions to its obligations to purchase the
Assets pursuant to the related Sales Agreement.
(ix) If a REMIC election is to be made with respect to some or
all of the related Assets ("REMIC Assets"), the Company will make or
cause to be made all filings necessary to establish and maintain the
status of such REMIC Assets as a REMIC.
(b) Each Underwriter represents, warrants, covenants and agrees with
the Company and OAC that:
(i) It either (A) has not provided any potential investor with
a Collateral Term Sheet (that is required to be filed with the
Commission within two business days of first use under the terms of the
Public Securities Association Letter as described below), or (B) has,
substantially contemporaneously with its first delivery of such
Collateral Term Sheet to a potential investor, delivered such
Collateral Term Sheet to the Company, which Collateral Term Sheet, if
any, is attached to the Underwriting Agreement as Exhibit A.
(ii) It either (A) has not provided any potential investor
with a Structural Term Sheet or Computational Materials, or (B) has
provided any such Structural Term Sheet or Computational Materials to
the Company, which Structural Term Sheets and Computational Materials,
if any, are attached to the Underwriting Agreement as Exhibit B.
(iii) Each Collateral Term Sheet bears a legend indicating
that the information contained therein will be superseded by the
description of the collateral contained in the Prospectus Supplement
and, except in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral Term
Sheets.
-10-
(iv) Each Structural Term Sheet and all Computational
Materials bear a legend substantially as follows (or in such other form
as may be agreed prior to the date of the Underwriting Agreement):
This information does not constitute either an offer to sell
or a solicitation of an offer to buy any of the securities
referred to herein. Information contained herein is
confidential and provided for information only, does not
purport to be complete and should not be relied upon in
connection with any decision to purchase the securities. This
information supersedes any prior versions hereof and will be
deemed to be superseded by any subsequent versions including,
with respect to any description of the securities or the
underlying assets, the information contained in the final
Prospectus and accompanying Prospectus Supplement. Offers to
sell and solicitations of offers to buy the securities are
made only by the final Prospectus and the related Prospectus
Supplement.
(v) It (at its own expense) agrees to provide to the Company
any accountants' letters obtained relating to the Collateral Term
Sheets, Structural Term Sheets and Computational Materials, which
accountants' letters shall be addressed to the Company.
(vi) It has not, and will not, without the prior written
consent of the Company, provide any Collateral Term Sheets, Structural
Term Sheets or Computational Materials to any investor after the date
of the Agreement.
(vii) Any Collateral Term Sheet, Structural Term Sheet or
Computational Materials do not contain any untrue statement of a
material fact and do not omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except to the extent that any such misstatement or omission results
from an Asset Pool Error (as defined in Section 8(a)(i) below).
For purposes of this Agreement, Collateral Term Sheets and Structural
Term Sheets shall have the respective meanings assigned to them in the February
13, 1995 letter of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, are
publicly available February 17, 1995). The term "Collateral Term Sheet" as used
herein includes any subsequent Collateral Term Sheet that reflects a substantive
change in the information presented. Computational Materials has the meaning
assigned to it in the May 17, 1994 letter of ▇▇▇▇▇ & Wood on behalf of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & Co., Inc. (which letter, and the SEC staff's response thereto, are
publicly available May 20, 1994).
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters hereunder to purchase the Underwritten Certificates of any
Series to which this Agreement applies shall be subject to the following
conditions:
(a) To the accuracy on the date hereof and on the Closing Date
(as if made on such Closing Date), and as of the date of the
effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date, of the representations and warranties on the
part of the Company and OAC contained herein and to the extent that the
Agreement provides that the Company and OAC are not making certain
representations and warranties, to the accuracy of the representations
and warranties provided by the parties making such representations and
warranties as of the date thereof and on the Closing Date (as if made
on such Closing Date) and as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing
Date.
(b) The Registration Statement shall have become effective and
no stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been
instituted or threatened; and the Final
-11-
Prospectus shall have been filed or mailed for filing with the
Commission in accordance with Rule 424 under the Act, and all actions
required to be taken and all filings required to be made by the Company
under the Act prior to the sale of the Underwritten Certificates shall
have been duly taken or made.
(c) Certificates.
------------
(i) The Company shall have delivered to the
Underwriters a certificate of the Company, signed by the
President or any Vice President or Assistant Vice President of
the Company and dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the
Registration Statement, the Final Prospectus, and the
Agreement and that: (A) the representations and warranties of
the Company in the Agreement are true and correct in all
material respects at and as of the Closing Date with the same
effect as if made on the Closing Date; (B) the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date; (C) no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and (D) nothing has
come to such Officer's attention that would lead him or her to
believe that the Final Prospectus contains any untrue
statement of a material fact or omits to state any material
fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not
misleading; and (E) there has been no material adverse change
or development involving a prospective material adverse change
in the business, operations, financial condition, properties
or assets of the Company.
(ii) OAC shall have delivered to the Underwriters a
certificate of OAC, signed by the President or any Vice
President or Assistant Vice President of OAC and dated the
Closing Date, to the effect that the signer of such
certificate has carefully examined the Agreement, the related
Sales Agreement (if applicable) and the related Pooling and
Servicing Agreement and that: (A) the representations and
warranties of OAC in the Agreement, the related Sales
Agreement (if applicable) and the related Pooling and
Servicing Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as
if made on the Closing Date and (B) there has been no material
adverse change or development involving a prospective material
adverse change in the business, operations, financial
condition, properties or assets of OAC.
(iii) Each Seller shall have delivered to the
Underwriters a certificate of such Seller, signed by the
President or any Vice President or Assistant Vice President
and dated the Closing Date, to the effect that the signer of
such certificate has examined the related Sales Agreement and
that: (A) the representations and warranties of the related
Seller in such Sales Agreement are true and correct in all
material respects at and as of the Closing Date with the same
effect as if made on the Closing Date; and (B) the Seller has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(d) Opinions.
--------
(i) The Underwriters shall have received from Hunton
& ▇▇▇▇▇▇▇▇ opinions of counsel, each dated the Closing Date
and satisfactory in form and substance to counsel for the
Underwriters, as to (A) various matters relating, among other
things, to the corporate status and authorization of the
Company and OAC, substantially in the form of Exhibit B-1
hereto; (B) various matters relating to the lien of the
trustee in the assets, substantially in the form of Exhibit
B-2 hereto; and (C) the applicable federal income tax
treatment of the Certificates.
-12-
(ii) The Underwriters shall have received copies of
any opinions of counsel furnished to the Rating Agencies (upon
which the Underwriters shall be entitled to rely) with respect
to the non-consolidation of the Company with its affiliates
and the "true sale" of the Assets, or, in the absence of such
true sale, that the Trustee has a perfected security interest
in the Assets, subject to no prior liens or encumbrances.
(iii) The Underwriters shall have received from
reputable counsel an opinion or opinions of counsel dated the
Closing Date and satisfactory in form and substance to counsel
for the Underwriters, as to the income tax treatment of the
Securities in those states specified in the Terms Agreement.
(iv) The Underwriters shall have received from
counsel for the Underwriters such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Certificates, the Pooling and Servicing Agreement, the
Agreement, the Registration Statement, the Final Prospectus
and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(v) The Company shall have furnished to the
Underwriters the opinions of counsel to each Seller, dated the
Closing Date and satisfactory in form and substance to counsel
for the Underwriter, as to the due authorization, execution
and delivery of each of the related Sales Agreements by the
related Seller and its enforceability against the related
Seller.
(vi) The Company shall have furnished to the
Underwriters the opinions of counsel to the Trustee, dated the
Closing Date and satisfactory in form and substance to counsel
for the Underwriters, as to the due authorization, execution
and delivery of the Pooling and Servicing Agreement by the
Trustee.
(vii) The Company shall have furnished to the
Underwriters the opinions of counsel to any Insurer, dated the
Closing Date and satisfactory in form and substance to counsel
for the Underwriters, as to the due issuance and
enforceability of the policies issued by such Insurer.
(e) The Underwritten Securities shall have been assigned the
ratings set forth in the Terms Agreement, which shall be in one of the
four highest rating categories, by one or more "nationally recognized
statistical rating organizations," as that term is defined by the
Commission from time to time, designated in the Terms Agreement. On the
Closing Date, (i) such rating or ratings shall not have been rescinded
and there shall not have been any downgrading, or public notification
of a possible downgrading or public notice of a possible change,
without indication of direction, and (ii) no downgrading, or public
notification of a possible downgrading or public notification of a
possible change, without indication of direction, shall have occurred
in the rating accorded any of the debt securities of any person
providing any form of credit enhancement for the Certificates by any
"nationally recognized statistical rating organization."
(f) The Underwriters shall have received from Price
Waterhouse, certified public accountants, two letters, (i) one dated
the date hereof and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters to the effect that they
have performed certain specified procedures as a result of which they
have determined that the Assets listed in Schedule I to each related
Sales Agreement conform with the description thereof in the Prospectus
Supplement under "The Asset Pool" and that a sampling of the Contract
Files relating to the Contracts and of the Trustee Mortgage Loan Files
relating to the Mortgage Loans conforms with the information contained
on the contract and mortgage loan data file tape upon which the
information in the Prospectus Supplement under the caption "The Asset
Pool"
-13-
was based; and (ii) the other letter dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters, reconfirming or updating the letter dated the date
hereof; to the further effect that they have performed certain
procedures as a result of which they have determined that the Assets
listed in Schedule I to the related Pooling and Servicing Agreement (A)
conform with the description thereof in the Prospectus Supplement under
the caption "The Asset Pool" and (B) conform with the information, if
any, set forth in the Company's report on Form 8-K with respect to such
Assets; and covering such other matters relating to the Trust as the
Underwriters may reasonably request.
(g) The Underwriters shall have received from the certified
public accountants of the Seller or Servicer, as applicable, a letter
or letters dated the date hereof and satisfactory in form and substance
to the Underwriters and counsel to the Underwriters to the effect that
they have performed certain specified procedures as a result of which
they determined that certain information of an accounting, financial
and statistical nature set forth in the Final Prospectus under the
caption "The Servicer" (or other caption relating to the Servicer's
servicing activities) agrees with the records of the Servicer.
(h) If applicable, and subject to the conditions set forth in
the related Pooling and Servicing Agreement, any reserve fund to be
established for the benefit of the holders of any related Certificates
shall have been established by the Company with the Trustee and any
initial deposit required to be made therein shall have been delivered
to the Trustee for deposit therein as contemplated by the related
Pooling and Servicing Agreement.
(i) On the Closing Date, there shall not have occurred any
change, or any development involving a prospective change, in or
affecting the business or properties of the Company since the date of
the Terms Agreement which the Underwriter concludes in the reasonable
judgment of the Underwriter materially impairs the investment quality
of the Underwritten Certificates so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Underwritten Certificates as contemplated by the Final Prospectus.
(j) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall
be satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, and the Underwriters and counsel for the
Underwriters shall have received such information, certificates and
documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in all material respects and in
form and substance reasonably satisfactory to the Underwriters and counsel for
the Underwriters, the Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of any such cancellation shall be given to the Company in
writing, or by telephone or telegraph and confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If for any reason, other
than a default by the Underwriters pursuant to Section 9 hereof, the sale of the
Underwritten Certificates provided for herein is not consummated, the Company or
OAC will reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been reasonably incurred by them in connection with their investigation,
the preparation to market and the marketing of the Underwritten Certificates, or
in contemplation of the performance by them of their obligations hereunder.
8. Indemnification and Contribution. (a) The Company and OAC, jointly
and severally, indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, as follows:
-14-
(i) against any and all losses, claims, expenses, damages or
liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Final Prospectus, or any amendment or
supplement thereto, or any related Preliminary Final Prospectus, or
arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements made therein not misleading; will
reimburse each Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that (A) the Company and OAC will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
omission, or alleged untrue statement or omission, made in any of such
documents in reliance upon and in conformity with written information
furnished to the Company by an Underwriter, specifically for use
therein, except to the extent that any untrue statement or alleged
untrue statement therein results (or is alleged to have resulted) from
an error or material omission in the information concerning the
characteristics of the Assets furnished by the Company to the
Underwriters for use in the preparation of any Collateral Term Sheet,
Structural Term Sheet or Computational Materials, which error was not
superseded or corrected by the delivery to the Underwriters of
corrected written or electronic information, or for which the Company
provided written notice of such error to the Underwriters prior to the
confirmation of the sale of the applicable Certificates (any such
uncorrected Asset information an "Asset Pool Error"), and (B) such
indemnity with respect to any Preliminary Final Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Underwritten Certificates which are
the subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as amended or supplemented,
excluding any documents incorporated therein by reference) at or prior
to the confirmation of the sale of such Underwritten Certificates to
such person in any case where such delivery is required by the Act and
the untrue statement or omission of a material fact contained in such
Preliminary Final Prospectus was corrected in the Final Prospectus (or
the Final Prospectus as amended or supplemented, excluding any
documents incorporated therein by reference);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, (A) if such settlement is
effected with the written consent of the Company or (B) if such
settlement is effected without the written consent of the Company, but
only if the Company has received a notice from the Underwriters of such
proposed settlement, substantially reflecting the terms of such
proposed settlement, and the Company has not responded to such notice
for 30 days after its receipt thereof and has not responded as of the
effective date of such settlement; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by you), reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or clause (ii) above.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
-15-
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Act or the Exchange Act, against any and all
losses, claims, expenses, damages or liabilities to which the Company or any
such director, officer or controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Final Prospectus or any amendment or supplement thereto, or any
related Preliminary Final Prospectus, or arise out of, or are based upon, the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements made therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter specifically for use therein; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action described therein, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability that it may have to any indemnified
party otherwise than under this Agreement. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish to do so, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party under this
Section 8, such indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and in respect of which
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 any claims that are the subject matter of such action.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 8, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be entitled
to contribution to the amount paid or payable by such indemnified party as a
result of the losses, claims, expenses, damages or liabilities referred to in
subsection (a) or (b) above, except to the extent that contribution is not
permitted under Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted, the relative opportunities of the Company and the Underwriters to
correct and prevent any untrue statement or omission, the relative benefits
received by each party from the offering of the Underwritten Certificates
(taking into account the portion of the proceeds of the offering (before
deducting expenses) realized by each), and any other equitable considerations
appropriate under the circumstances. The Company and the Underwriters agree that
it would not be equitable if the amount of such contribution were to be
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method that does not
take account of the equitable considerations referred to in the second sentence
of this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter or person controlling such Underwriter shall be obligated to make
contribution hereunder that in the aggregate exceeds the total public offering
price of the Underwritten Certificates purchased by
-16-
such Underwriter under this Agreement, less the aggregate amount of any damages
which such Underwriter and its controlling persons have otherwise been required
to pay by reason of such untrue statement or alleged untrue statement or
omission. The Underwriters' obligations to contribute shall be several in
proportion to their respective underwriting obligations and not joint.
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Underwritten Certificates of any Class
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the portion of the Underwritten Certificates of such Class set forth opposite
their names in the Terms Agreement or in an attachment to the Terms Agreement
bears to the aggregate amount of Underwritten Certificates of such Class set
forth opposite the names of the remaining Underwriters) the Underwritten
Certificates of such Class which the defaulting Underwriter or Underwriters
agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the
amount of Underwritten Certificates of such Class which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Underwritten Certificates of such Class as set forth in
the Final Prospectus, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Underwritten Certificates of such Class, and if such non-defaulting Underwriters
do not purchase all the Underwritten Certificates of such Class, this Agreement
will terminate without liability to any non-defaulting Underwriter or the
Company. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company for damages occasioned by
its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for all Underwritten Certificates if prior to such time
(i) trading in securities generally on the New York Stock Exchange or American
Stock Exchange shall have been suspended or limited, or minimum approximate
prices shall have been established on such Exchange; (ii) a banking moratorium
shall have been declared by either federal or New York State authorities; (iii)
there shall have occurred any outbreak or escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Underwriters, impracticable
or inadvisable to market the Underwritten Certificates; or (iv) there has been,
since the date of the Terms Agreement or since the respective dates as of which
information is given in the Registration Statement or the Final Prospectus any
change in, or any development involving a prospective change in, or affecting,
the condition, financial or otherwise, earnings, affairs or business of the
Company, whether arising in the ordinary course of business or otherwise, which
in the reasonable judgment of the Underwriters would materially impair the
market for, or the investment quality of, the Underwritten Certificates..
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company and OAC or their respective officers and the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or OAC or any of the officers, directors or controlling persons referred
to in Section 8 hereof, and will survive delivery of and payment for the
Underwritten Certificates. The provisions of this Section 11 and Sections
5(a)(v), 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to it at the office or offices set forth
in the Terms Agreement; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Treasurer; or, if sent to OAC, will be mailed, delivered
or telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasurer.
-17-
13. Successors. The Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. Applicable Law. The Agreement will be governed by and construed in
accordance with the laws of the jurisdiction as may be specified in the Terms
Agreement. The Terms Agreement may be executed in any number of counterparts,
each of which shall for all purposes be deemed to be an original and all of
which shall together constitute but one and the same instrument.
15. Miscellaneous. Time shall be of the essence of this Agreement. This
Agreement supersedes all prior or contemporaneous agreements and understandings
relating to the subject matter hereof. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
-18-
Exhibit A
Oakwood Mortgage Investors, Inc.
Pass-Through Certificates
FORM OF TERMS AGREEMENT
Dated: ____________, 19__
To: Oakwood Mortgage Investors, Inc. (the "Company")
Oakwood Acceptance Corporation ("OAC")
Re: Underwriting Agreement Standard Provisions dated
May 1999 (the "Standard Provisions")
Series
Designation: Pass-Through Certificates, Series 19__-__, Classes ________
_________________________ (collectively, the "Certificates").
The Classes _______________ Certificates are collectively
referred to herein as the "Underwritten Certificates."
UNDERWRITING AGREEMENT: Subject to the terms and conditions set forth
herein and to the terms of the Standard Provisions, which are incorporated by
reference herein, the Company hereby agrees to issue and sell to
______________________ (the "Underwriter"), and the Underwriter hereby agrees to
purchase from the Company, on ______________, 19__, the Underwritten Securities
at the purchase price and on the terms set forth below; provided, however, that
the obligations of the Underwriter are subject to: (i) receipt by the Company of
the ratings on the Certificates as set forth herein, (ii) receipt by the
Underwriter of the Sales Agreement (the "Sales Agreement"), dated as of
_______________, 19__, by and between the Company and OAC, and the Pooling and
Servicing Agreement (as defined below), each being in form and substance
satisfactory to the Underwriter.
The Certificates will be issued by OMI Trust 19__-__ pursuant to a
Pooling and Servicing Agreement, to be dated as of ______________, 19__ among
the Company, OAC, as servicer (the "Servicer") and _______________________, as
Trustee (the "Trustee"), which incorporates by reference the Company's Standard
Terms to Pooling and Servicing Agreement (September 1994 Edition) (collectively,
the "Pooling and Servicing Agreement"). The Certificates will represent in the
aggregate the entire beneficial ownership interest in the assets of the Trust
which will consist primarily of retail installment sales contracts secured by
units of manufactured housing (the "Contracts") with original terms to maturity
not exceeding 20 years [and] conventional, one- to four-family, fully
amortizing, [fixed][adjustable] rate, first-lien residential mortgage loans (the
"Mortgage Loans" and, together with the Contracts, the "Assets") with original
terms to maturity not exceeding 30 years, in each case having the
characteristics described in the Prospectus Supplement.
A-1
The Company and the Servicer specifically covenant to make available on
the Closing Date for sale, transfer and assignment to the Trust, Contracts [and]
Mortgage Loans having the characteristics described in the Prospectus
Supplement; provided, however, that there may be nonmaterial variances from the
description of the Contracts [and] Mortgage Loans in the Prospectus Supplement
and the Contracts [and] Mortgage Loans actually delivered on the Closing Date.
REGISTRATION STATEMENT: References in the Standard Provisions to the
Registration Statement shall be deemed to include registration statement No.
33-____________.
INITIAL AGGREGATE SCHEDULED PRINCIPAL BALANCE OF ASSETS: Approximately
$_____________
CUT-OFF DATE: ___________________, 19__
TERMS OF THE CERTIFICATES:
================================================================================================================================
Original
Principal Purchase
Class Balance Pass-Through Price of the
Designation (approximate)(1) Rate Rating Certificates
--------------------------------------------------------------------------------------------------------------------------------
[Specify Rating
Agency and
Rating]
================================================================================================================================
(1) Subject to a permitted variance of plus or minus 5% depending on the
Contracts and Mortgage Loans actually acquired by the Trust.
SUBORDINATION FEATURES: Losses and Shortfalls on the Contracts and
Mortgage Loans will be allocated among the Certificates as described in the
Prospectus Supplement. [Except as otherwise specified in the Prospectus
Supplement, the Class __ Certificates are subordinated to the rights of the
Class __ Certificates for purposes of the allocation of Realized Losses on the
Contracts and Mortgage Loans, as described in the Prospectus Supplement.]
RESERVE FUNDS:
DISTRIBUTION DATES: Each Distribution Date shall be the [___] day of
each month, or if such day is not a business day, on the next succeeding
business day, commencing in _______________ 19__.
[REMIC ELECTION: An election will be made to treat some or all of the
assets of the Trust as a real estate mortgage investment conduit for federal
income tax purposes (the "REMIC"). The Classes _______ Certificates will be
designated as "regular interests" in the REMIC and the Class R Certificates will
be designated as the "residual interest" in the REMIC.]
PURCHASE PRICE: The Underwriter has agreed to purchase the Underwritten
Certificates from the Company for a purchase price of ___________% of the
initial aggregate principal amount thereof, plus accrued interest thereon from
___________, 19__. Payment of the purchase price for the Underwritten
Certificates shall be made to the Company in federal or similar immediately
available funds payable to the order of the Company.
DENOMINATIONS: The Underwritten Certificates will be issued in
[book-entry] [certificated, fully-registered] form in minimum denominations of
$_________ and integral multiples of $_________ in excess thereof, except that
one Certificate of each Class of the Underwritten Certificates may be issued in
a different denomination.
A-2
FEES: It is understood that servicing fees will be withheld from the
payments on the Assets in each month prior to distributions on the Certificates
on the Distribution Date occurring in such month.
CLOSING DATE AND LOCATION: 10:00 a.m. Eastern Time on ___________,
19__, at the offices of Hunton & ▇▇▇▇▇▇▇▇, Riverfront Plaza, East Tower, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. [The Company will deliver the
Underwritten Certificates in certificated, fully-registered form at the offices
of the Underwriter in __________, ______________ on ______________, 19__.] [The
Company will deliver the Underwritten Securities in book-entry form only,
through the same-day funds settlement system of The Depository Trust Company on
the Closing Date.]
CONDITIONS:
ADDITIONAL CONDITIONS:
DUE DILIGENCE: At any time prior to the Closing Date, the Underwriter
has the right to inspect the Contract Files [and] Trustee Mortgage Loan Files,
the related manufactured homes [and] mortgaged properties and the related loan
origination procedures to ensure conformity with the Final Prospectus and the
Prospectus Supplement.
CONTROLLING AGREEMENT: This Terms Agreement sets forth the complete
agreement among the Company, OAC and the Underwriter and fully supersedes all
prior agreements, both written and oral, relating to the issuance of the
Underwritten Certificates and all matters set forth herein. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Standard Provisions.
COLLATERAL TERM SHEETS, STRUCTURAL TERM SHEETS AND COMPUTATIONAL
MATERIALS: The Underwriter hereby represents and warrants that (i) information
provided by it and attached hereto as Exhibit A constitutes all "Collateral Term
Sheets" (that are required to be filed with the Commission within two business
days of first use under the terms of the Public Securities Association letter)
disseminated by it in connection with the Underwritten Certificates and (ii)
information provided by it and attached hereto as Exhibit B constitutes all
"Structural Term Sheets" and "Computational Materials" disseminated by it in
connection with the Underwritten Certificates.
INFORMATION PROVIDED BY THE UNDERWRITER: It is understood and agreed
that the information (i) set forth under the heading "Underwriting" in the
Prospectus Supplement and the sentence regarding the Underwriter's intention to
establish a market in the Underwritten Certificates on the Cover Page of the
Prospectus Supplement, and (ii) classified as Collateral Terms Sheets,
Structural Terms Sheets or Computational Materials, is the only information
furnished by the Underwriter for inclusion in the Registration Statement and the
Final Prospectus.
TRUSTEE: _________________________ will act as Trustee of the Trust.
[CUSTODIAN:]
BLUE SKY QUALIFICATIONS: The Underwriter specifies no jurisdictions and
the parties do not intend to qualify the Underwritten Securities in any
jurisdiction.
STATE TAX OPINIONS:
BLACKOUT PERIOD: [None.]
APPLICABLE LAW: THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF [NEW YORK] WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
NOTICES: All communications hereunder will be in writing and effective
only upon receipt and, if sent to the
A-3
Underwriter, will be mailed, delivered or telegraphed and confirmed to the
Underwriter at________________________________ ___, Attention: ______________.
REQUEST FOR OPINIONS: (a) The Company and OAC hereby request and
authorize Hunton & ▇▇▇▇▇▇▇▇, as their counsel in this transaction, to issue on
behalf of the Company and OAC, such legal opinions to the Underwriter, its
counsel, the Trustee and the Rating Agencies as may be required by any and all
documents, certificates or agreements executed in connection with this
Agreement.
(b) The Underwriter hereby requests and authorizes
________________________________, as its special counsel in this transaction, to
issue on behalf of the Underwriter such legal opinions to the Company, OAC and
Hunton & ▇▇▇▇▇▇▇▇, as counsel to the Company and OAC, as may be required by any
and all documents, certificates or agreements executed in connection with this
Agreement.
A-4
The Underwriter agrees, subject to the terms and provisions of the
Standard Provisions, a copy of which is attached hereto, and which is
incorporated by reference herein in its entirety and made a part hereof to the
same extent as if such provisions had been set forth in full herein, to purchase
the Underwritten Certificates.
[NAME OF UNDERWRITER]
By:________________________
Name:
Title:
Accepted and Acknowledged
As of the Date First
Above Written:
OAKWOOD MORTGAGE INVESTORS, INC.
By:_______________________
Name:
Title:
OAKWOOD ACCEPTANCE CORPORATION
By:_______________________
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
_____________, 19__
[Name and Address
of Underwriter(s)]
OAKWOOD MORTGAGE INVESTORS, INC.
PASS-THROUGH CERTIFICATES, SERIES
------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Oakwood Mortgage Investors, Inc., a
Nevada corporation ("OMI"), in connection with the formation by it of OMI Trust
19__-_ (the "Trust"), the assets of which consist primarily of a pool of retail
installment sales contracts (the "Contracts") secured by units of manufactured
housing ("Manufactured Homes") [and] mortgage loans (the "Mortgage Loans," and,
together with the Contracts, the "Assets") secured by first liens on one- to
four-family residential real properties (the "Mortgaged Properties").
The Trust was organized pursuant to a Pooling and Servicing Agreement
(the "Series Agreement"), dated as of ___________, 19__, by and among OMI,
Oakwood Acceptance Corporation ("OAC") in its capacity as servicer of the
Contracts (the "Servicer"), and ___________________, as trustee (the "Trustee").
The Series Agreement incorporates by reference OMI's Standard Terms to Pooling
and Servicing Agreement (September 1994 Edition) (the "Standard Terms," and,
together with the Series Agreement, the "Pooling and Servicing Agreement"). We
also have acted as special counsel to OAC in connection with its role as
Servicer for the Trust. Capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Pooling and Servicing Agreement.
The Trust is issuing today _____ Classes of certificates (collectively,
the "Certificates"), which Classes are described in the Pooling and Servicing
Agreement. The Classes _____ Certificates (the "Underwritten Certificates") are
being sold to you today pursuant to a terms agreement (the "Terms Agreement"),
dated as of _________, 19__, among OMI, OAC and you (the "Underwriter(s)") .
This opinion is furnished to you in accordance with Section 6(d) of OMI's
Underwriting Agreement Standard Provisions (May 1999) (the "Standard
Provisions"), the terms of which are incorporated by reference into the Terms
Agreement (the Terms Agreement together with the Standard Provisions being
referred to collectively as the "Underwriting Agreement").
In rendering the opinions expressed below, we have made such legal and
factual examinations and inquiries as we have deemed necessary or advisable for
the purpose of rendering this opinion, including but not limited to the
examination of the following:
a. OMI's registration statement on Form S-3 (No. 33-______)
(the "Registration Statement"), filed under the Securities
Act of 1933, as amended (the "Act"), and the Prospectus
and Prospectus Supplement, each dated __________, 19__
(collectively, the "Prospectus"), all relating to the
Underwritten Certificates;
B1-1
[Name of Underwriter(s)]
_____________, 19__
Page 2
b. The Pooling and Servicing Agreement;
c. The form of the Certificate evidencing each Class of
Certificates;
d. The Underwriting Agreement;
e. The Sales Agreement, dated as of ___________, 19__
(the "Sales Agreement"), between OAC, as seller, and
OMI, as purchaser, pursuant to which OMI acquired the
Assets;
f. The purchase agreement, dated as of ___________, 19__
(the "Purchase Agreement"), between OMI and [Oakwood
Financial Corporation, a Delaware corporation
("OFC")], pursuant to which OFC is purchasing the
Class _____ Certificates;
g. The forms of Contract used by OAC in Virginia (each,
a "Form Contract"), which forms have been supplied by
OAC to us and to you in an attachment to a
certificate of officers of OAC and of certain of its
affiliates dated the date hereof;
h. The Articles of Incorporation, as amended, and Bylaws
of each of OMI and OAC, together with a certificate
of existence from the States of Nevada and North
Carolina with respect to each of OMI and OAC,
respectively; and
i. Resolutions of each of OMI and OAC pertaining to the
subject transactions, each certified by an officer of
OAC or OMI, as appropriate.
In rendering the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies, (iii) the
genuineness of signatures not witnessed by us, (iv) the legal capacity of
natural persons and (v) the due authorization, execution and delivery of all
documents by all parties thereto and the validity and binding effect thereof
(other than the authorization, execution and delivery of documents by OMI and
OAC and the validity and binding effect thereof upon OMI and OAC, to the extent
we express our opinion on such subjects below). Whenever the phrases "to our
knowledge" or "known to us" are used in this opinion letter, they refer to the
actual knowledge of the attorneys of this firm involved in the representation of
OMI and OAC in connection with the transactions described herein without
independent investigation.
B1-2
[Name of Underwriter(s)]
_____________, 19__
Page 3
In addition, we have relied, as to factual matters, upon
representations included in the Sales Agreement, the Pooling and Servicing
Agreement and the Underwriting Agreement (collectively, the "Agreements") and
other agreements and documents delivered at the closing, and upon certificates
of officers of OMI, OAC and the Trustee, and upon certificates of public
officials.
In addition, for purposes of the opinions expressed in numbered
paragraph 9 below, we have assumed (i) that all Contracts originated by OAC or
its affiliates in the Commonwealth of Virginia are in the form of one of the
Form Contracts and (ii) that no obligor under any Contract may avail himself or
herself of any claim or defense based on grounds other than the form of such
Contract, and that the blanks in the Contracts were completed in compliance with
applicable federal and state laws.
The obligations of the parties with respect to the Agreements are
subject, with respect to their enforceability, to the provisions of federal and
other applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting the enforcement of creditors' rights generally,
now or hereafter in effect. Such obligations also are subject to usual equity
principles, which may limit enforcement under state law of certain remedies, but
which do not affect the validity of such documents.
I.
Based upon the foregoing and such other documents and information a
review of which we have considered necessary for the purposes hereof, and
subject to all the assumptions and qualifications set forth herein, we are of
the opinion that:
1. Each of OMI and OAC (a) is a corporation created, organized
and existing under the laws of the States of Nevada and North Carolina,
respectively, (b) has paid all fees, taxes and penalties owed to the
States of Nevada and North Carolina respectively, to the extent (i)
payment of such fees, taxes and penalties is reflected in the records
of the Secretary of State of such states and (ii) nonpayment of such
fees, taxes and penalties would affect the existence of OMI or OAC, as
the case may be, (c) has delivered to the Secretary of State of such
states its most recent annual report as required by the statutes of
such states and (d) has not filed articles of dissolution.
2. Each of OMI and OAC has the corporate power and authority
to own its properties, to conduct its business as described in the
Prospectus and to execute and deliver and perform under each of the
Agreements and to enter into all the transactions contemplated under
the Agreements, and has taken all necessary corporate action to
authorize the execution and delivery of and performance under the
Agreements. The Agreements have been duly authorized, executed and
delivered by each of OMI and OAC and constitute the legal, valid and
binding obligations of each of OMI and OAC, enforceable against OMI and
OAC in accordance with their respective terms under North Carolina law,
in the case of the Sales Agreement and the Pooling and Servicing
Agreement, and under New York law, in the case of the Underwriting
Agreement.
3. To our knowledge, there is no investigation, action,
litigation or administrative proceeding of or before any court,
tribunal or governmental body currently pending or threatened against
OMI or OAC (a) asserting the invalidity of the Agreements or the
Certificates, (b) seeking to prevent the consummation of any of the
transactions contemplated by the Agreements, (c) that would be likely
to impair materially the ability of OMI or OAC to perform its
obligations under any of the Agreements or to affect materially and
adversely the validity or enforceability of any of the Agreements or
the Certificates or (d) that could reasonably be expected to result in
any material adverse change in the business, operations, financial
conditions, properties or assets of OMI or OAC to carry on its business
substantially as now conducted.
B1-3
[Name of Underwriter(s)]
_____________, 19__
Page 4
4. The execution, delivery and performance of the Agreements
and the transactions contemplated thereby by OMI and OAC (a) will not
violate any provision of the articles of incorporation or bylaws of OMI
or OAC, any existing law or regulation or (b) to our knowledge, result
in a breach of, or constitute a default under, any order, judgment,
writ, injunction or decree of any court or governmental authority
applicable to OMI or OAC and, to our knowledge, will not conflict
materially with or constitute a material breach of, or a default under,
any mortgage, deed of trust, indenture, contract or other agreement to
which OMI or OAC is a party or by which OMI or OAC may be bound.
5. Upon due execution and authentication by the Trustee of
each Class of the Underwritten Certificates in accordance with the
terms of the Pooling and Servicing Agreement, and upon payment for the
Underwritten Certificates as provided for in the Underwriting
Agreement, the Underwritten Certificates will be validly issued and
outstanding and the holders thereof will be entitled to the benefits
provided by the Pooling and Servicing Agreement.
6. No consent, approval, authorization or order of,
registration or filing with, or notice to, any court or governmental
agency or body or official is required under the laws of the United
States of America, the State of North Carolina or the State of Nevada
that, in our experience, are normally applicable to transactions of the
type contemplated by the Agreements, for the consummation by OAC of the
transactions contemplated by the Agreements, except such as have been
obtained under the Act and such as may be required under state
securities or "blue sky" laws of any jurisdiction in connection with
the purchase and distribution by the Underwriter(s) of the Underwritten
Certificates.
7. The Trust established pursuant to the Pooling and Servicing
Agreement is not required, as a result of the offer and sale of the
Certificates as contemplated by the Underwriting Agreement or Purchase
Agreement, to be registered under the Investment Company Act of 1940,
as amended.
8. Assuming due execution thereof, the Contracts originated by
OAC or one of its affiliates in the Commonwealth of Virginia and States
of North Carolina and South Carolina constitute the legal, valid and
binding obligations of the respective obligors and the forms of
Contract used by OAC and its affiliates in Virginia, North Carolina and
South Carolina comply in all material respects as to form and content
with the applicable laws of each such state, respectively, and with
applicable federal laws.
B1-4
[Name of Underwriter(s)]
_____________, 19__
Page 5
9. The Registration Statement has become effective under the
Act, and, to our knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and not withdrawn and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
10. The statements in the Prospectus under the captions
"Description of the Certificates," "The Pooling and Servicing
Agreements" and "ERISA Considerations," and the statements in the
Prospectus Supplement under the captions "The Trust," "Description of
the Underwritten Certificates" and "ERISA Considerations," insofar as
such statements constitute a summary of the documents referred to
therein, fairly summarize such documents and present the information
called for by the Act and the rules and regulations promulgated under
the Act.
II.
We have participated in various conferences with the officers and
directors of OMI and its independent certified public accountants. In some
conferences you and your counsel also participated. At those conferences, the
contents of the Registration Statement and Prospectus were discussed and
revised. Since the dates of those conferences, we have inquired of certain
officers whether there has been any material change in the affairs of OMI.
Because of the inherent limitations in the independent verification of
factual matters, and the character of determinations involved in the preparation
of registration statements under the Act, we are not passing upon, and do not
assume any responsibility for, and make no representation that we have
independently verified the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except as
specifically set forth in paragraph 10 of Part I of our opinion above. Also, we
do not express any opinion or belief as to the financial statements or other
financial or statistical information contained or incorporated by reference into
the Registration Statement. However, subject to the foregoing, on the basis of
our participation in the conferences referred to above and our examination of
the documents referred to herein, we advise you that: (a) in our opinion, the
Registration Statement, when it became effective, and the Prospectus, as of its
date and as of the date hereof (other than the financial statements, schedules
and other financial data included therein or excluded therefrom or included in
or excluded from the exhibits to the Registration Statement or incorporated
therein by reference, as to which we express no opinion) comply as to form in
all material respects with the requirements of the Act and the rules and
regulations promulgated thereunder; and (b) we do not know of any contracts or
documents of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement that are
not described or filed as required. We note that the Pooling and Servicing
Agreement will be filed as an exhibit to a Current Report of OMI on Form 8-K
within 15 days of the date hereof. Further, nothing has come to our attention
that leads us to believe that the Registration Statement, when it became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; or that the Prospectus, as of its date and as
of the date hereof, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements, in light of the circumstances under
which they were made, not misleading; except that we make no statement with
respect to the financial statements or other financial or statistical data
included therein or incorporated therein by reference, including, but not
limited to, the asset information under the heading "The Asset Pool" and the
asset information and financial data under the headings "Maturity and Prepayment
Considerations" and "Yield Considerations" in the Prospectus Supplement and the
information set forth in the Prospectus under the heading "Maturity and
Prepayment Considerations."
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[Name of Underwriter(s)]
_____________, 19__
Page 6
We do not purport to express an opinion on any laws other than those of
the State of North Carolina, the State of Nevada and the United States of
America. With respect to the opinions expressed in numbered paragraphs [__] and
[__] above, we have, with your permission, relied upon the opinion of Messrs.
[_____________] dated the date hereof to you as to matters covered thereby.
We consent to reliance on this opinion letter by the Trustee and by
[names of rating agencies] for their purposes in issuing letters rating the
Underwritten Certificates. Except as provided in the preceding sentence, this
opinion letter is for your benefit only and may not be relied upon by, nor may
copies be delivered to, any other person without our prior written consent.
Very truly yours,
▇▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
__________ __, 19__
[Name and Address
of Underwriter(s)]
OAKWOOD MORTGAGE INVESTORS, INC.
PASS-THROUGH CERTIFICATES, SERIES
--------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Oakwood Mortgage Investors, Inc., a
Nevada corporation ("OMI"), in connection with the formation by it of OMI Trust
19__-__ (the "Trust"), the assets of which consist primarily of a pool of retail
installment sales contracts (the "Contracts") secured by units of manufactured
housing ("Manufactured Homes") [and] mortgage loans (the "Mortgage Loans," and,
together with the Contracts, the "Assets") secured by first liens on
one-to-four-family residential real properties (the "Mortgaged Properties").
The Trust was organized pursuant to a Pooling and Servicing Agreement
(the "Series Agreement"), dated as of _________ __, 19__, by and among OMI,
Oakwood Acceptance Corporation ("OAC") in its capacity as servicer of the
Contracts (the "Servicer"), and _____________________________, as trustee (the
"Trustee"). The Series Agreement incorporates by reference OMI's Standard Terms
to Pooling and Servicing Agreement (September 1994 Edition) (the "Standard
Terms," and, together with the Series Agreement, the "Pooling and Servicing
Agreement"). We also have acted as special counsel to OAC in connection with its
role as Servicer for the Trust. Capitalized terms used herein but not defined
herein shall have the meanings assigned to them in the Pooling and Servicing
Agreement.
The Trust is issuing today [number] classes of certificates
(collectively, the "Certificates"), which Classes are described in the Pooling
and Servicing Agreement. The Classes ________________ Certificates (the
"Underwritten Certificates") are being sold to you today pursuant to a terms
agreement (the "Terms Agreement") dated ___________ __, 19__, among you (the
"Underwriter"), OMI and OAC. This opinion is furnished to you in accordance with
Section 6(e) of OMI's Underwriting Agreement Standard Provisions (May 1999) (the
"Standard Provisions"), the terms of which are incorporated by reference into
the Terms Agreement (the Terms Agreement together with the Standard Provisions
being referred to collectively as the "Underwriting Agreement").
In rendering the opinions expressed below, we have examined the
following documents:
(a) The Pooling and Servicing Agreement;
(b) The Sales Agreement, dated as of _____________ __,
19__ (the "Sales Agreement"), by and between OAC, as
seller, and OMI, as purchaser, pursuant to which OMI
acquired the Assets;
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[Name of Underwriter(s)]
__________ __, 19 __
Page 2
(c) Financing statements (the "Financing Statements") (1)
relating to the Contracts and the payments thereon
and proceeds thereof, naming Oakwood Mobile Homes,
Inc. ("Oakwood Mobile") as debtor, OAC as secured
party and OMI as assignee, (2) relating to the Assets
and the payments thereon and proceeds thereof, naming
OAC as debtor, OMI as secured party and the Trustee
as assignee, and (3) relating to the Assets and the
payments thereon and proceeds thereof, OMI's rights
under the Sales Agreement and to the [specify any
reserve or other funds pledged or conveyed to the
Trustee by OMI], naming OMI as debtor and the Trustee
as secured party;
(d) The Underwriting Agreement (together with the Pooling
and Servicing Agreement and the Sales Agreement, the
"Agreements"); and
(e) The Purchase Agreement (the "Purchase Agreement"),
dated as of ____________ __, 19__, between OMI and
[Oakwood Financial Corporation, a Delaware
corporation ("OFC")], pursuant to which [OFC] is
purchasing the Class ________________ Certificates.
For the purposes of this opinion:
(i) the "Virginia UCC" means the Uniform Commercial
Code as in effect in the Commonwealth of Virginia;
(ii) the "North Carolina UCC" means the Uniform
Commercial Code as in effect in the State of North Carolina;
(iii) "Money" means "money" as defined in Section
1-201 of the [applicable] UCC;
(iv) "Instruments" means "instruments" as defined in
Section 9-105(1)(i) of the [applicable] UCC;
(v) "General Intangibles" means "general intangibles"
as defined in Section 9-106 of the [applicable] UCC; and
(vi) "Chattel Paper" means "chattel paper" as defined
in Section 9-105(1)(b) of the [applicable] UCC.
In rendering the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies, (iii) the
genuineness of signatures not witnessed by us, (iv) the legal capacity of
natural persons and (v) the due authorization, execution and delivery of all
documents by all parties thereto and the validity, binding effect and
enforceability thereof. We note that you have received today our opinion with
respect to certain of the matters set forth in clause (v) of the preceding
sentence. Whenever the phrase "to our knowledge" or "known to us" is used
herein, it refers to the actual knowledge of the attorneys of this firm involved
in the representation of OMI and OAC in connection with the transactions
described herein without independent investigation.
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[Name of Underwriter(s)]
__________ __, 19 __
Page 3
We have not examined the actual Contracts [or] Mortgage Notes, the
assignments of the Contracts [or] the endorsements of the Mortgage Notes, any
Mortgages or assignments thereof or any other Contract Documents or Mortgage
Loan Documents (collectively, the "Asset Documents"), and we express no opinion
concerning the conformity of any of the foregoing to the requirements of any of
the Agreements. We have not examined the certificate of title, if any,
pertaining to the ownership or status of title to the property securing any
Contract and we express no opinion thereon. We also have not examined any title
records as they pertain to ownership or status of title to the Mortgaged
Property securing any Mortgage Note or the Real Property securing any Land
Secured Contract. [We call to your attention that the Initial Certification of
the Trustee delivered pursuant to Section 2.03(c)(1) of the Standard Terms
identifies certain document deficiencies with respect to the Mortgage Loan
Documents for certain Mortgage Loans. Consequently, certain assumptions made
herein regarding the conformity of the Asset Documents to the requirements of
any of the Agreements may not be true. We note that the Sales Agreement provides
that, in some but not all circumstances, OAC is required to repurchase or
replace Assets to the extent of document deficiencies that are not cured.]
We have requested ▇▇▇▇▇▇▇▇-▇▇▇▇ Legal & Financial Services, Inc. to
review the UCC records maintained by the [_____________] Secretary of State and
the Register of Deeds of [_____________] with respect to financing statements
naming Oakwood Homes Corporation, Oakwood Mobile, or OMI, as debtor. Our opinion
expressed in numbered paragraph 3 below is rendered in reliance upon the results
of that search and upon a certificate of officers of the respective companies
relating thereto, and is based upon the assumptions (i) that no financing
statements were filed against any of the aforementioned companies as of the
dates through which the respective related search reports are current, which is
no earlier than ____________ __, 19__, other than those reflected in such search
reports, and (ii) that no financing statements have been filed against such
companies since ______________ __, 19__. We assume no liability for the search
reports. Each of OAC and OMI has represented that the Assets formerly owned by
it are subject to no liens, claims or encumbrances having priority over the
Trustee's lien thereon.
Our opinions expressed in numbered paragraph 4 below are based among
other things upon Sections 46.2- 638 and 46.2-640 of the Virginia Code, each as
currently in effect. Section 46.2-638 of the Virginia Code provides:
A certificate of title, when issued by the Department [of Motor
Vehicles] showing a security interest, shall be adequate notice to the
Commonwealth, creditors, and purchasers that a security interest in the
motor vehicle exists and the recording or filing of such creation or
reservation of a security interest in the county or city wherein the
purchaser or debtor resides or elsewhere is not necessary and shall not
be required.
Section 46.2-640 of the Virginia Code provides:
The security interests . . . shown upon such certificate of title
issued by the Department [of Motor Vehicles] pursuant to applications
for same shall have priority over any other liens or security interests
against such motor vehicle, trailer or semitrailer, however created and
recorded.
However, we call to your attention that Section 46.2-641 of the Virginia Code,
as currently in effect, contains the following requirement:
The certificate of title of a motor vehicle, trailer or semitrailer
shall be delivered to the person holding the security interest having
first priority on the motor vehicle, trailer or semitrailer and
RETAINED BY HIM until the entire amount of his security interest is
fully paid by the owner. When the security interest is fully paid, the
B2-3
[Name of Underwriter(s)]
__________ __, 19 __
Page 4
certificate of title shall be delivered to the secured party next in
order of priority or, if none, to the owner. EMPHASIS ADDED.
Although the matter is not free from doubt, we believe that Sections
46.2-638 and 46.2-640 set forth in clear and unambiguous language the required
method for perfection, and the prerequisites for priority, of a security
interest in a motor vehicle, and that Section 46.2-641 should not be applied to
modify those provisions. Further, we believe that Section 46.2-641 is intended
merely to ensure delivery of certificates of title to motor vehicles to the
purchasers thereof after they have paid off their purchase financing. If so,
OAC's retention of possession of the certificates of title relating to all of
the Manufactured Homes located in Virginia and securing Oakwood Contracts should
not affect the Trustee's interest in those of such Manufactured Homes, on the
certificates of title for which the Trustee is named as first lienor (the
"Trustee Titled Homes"). However, there can be no complete assurance in this
regard, and, for that reason, the Pooling and Servicing Agreement contains an
acknowledgment from the Trustee that, as to the Trustee Titled Homes, OAC, as
the Servicer, is holding the related certificates of title on the Trustee's
behalf as its bailee and agent for the purposes specified in the Pooling and
Servicing Agreement. Although an appointment by a secured party holding a
security interest in Chattel Paper of its debtor as its agent for possession of
such Chattel Paper is not effective under the Virginia UCC for perfection of
such security interest, there is no parallel provision in the Virginia Motor
Vehicle Code invalidating the appointment by a secured party holding a security
interest in a motor vehicle of a predecessor secured party as its agent for
possession of the related certificate of title pursuant to Section 46.2-641.
Accordingly, we believe, and we assume, for purposes of rendering our opinion
expressed in numbered paragraph 4 below, that either (i) Section 46.2-641 would
not be read by a court applying Virginia law as modifying Section 46.2-638 or
Section 46.2-640 or (ii) the appointment of OAC referred to above will be
sufficient to establish OAC as the agent of the Trustee for the possession of
the certificates of title relating to the Trustee Titled Homes for purposes of
Section 46.2-641.
Based upon the foregoing and such other documents and information a
review of which we have considered necessary for the purposes hereof, and
subject to all other assumptions and qualifications set forth herein, we are of
the opinion that:
1. In the event that either the transfer of the Assets by OAC
to OMI or the transfer of the Assets by OMI to the Trustee is found not
to be a "true sale," (a) OAC (i) has granted to OMI a valid security
interest under Article 9 of the Virginia UCC in the Contracts and the
Mortgage Notes, and in the proceeds thereof to the extent provided in
Section 9-306 of the Virginia UCC, and (ii) has assigned to OMI a
security interest in the Manufactured Homes, and (b) OMI (i) has either
granted or assigned to the Trustee a valid security interest under
Article 9 of the Virginia UCC in the Contracts and the Mortgage Notes,
and in the proceeds thereof to the extent provided in Section 9-306 of
the Virginia UCC, and (ii) has assigned to the Trustee a security
interest in the Manufactured Homes.
[2. OMI has granted to the Trustee a valid security interest
in the Money and Instruments comprising the [specify any fund pledged
by OMI to the Trustee], and in the proceeds thereof to the extent
provided in Section 9-306 of the Virginia UCC.]
3. The Financing Statements are in appropriate form for filing
in the office of the [_______________] Secretary of State and in the
office of the Register of Deeds of [______________________], and the
due indexing of the Financing Statements among the UCC financing
statement records in the office of the [_______________] Secretary of
State and in the office of the Register of Deeds of [_________________]
will be sufficient to perfect the security interests created by the
Sales
B2-4
[Name of Underwriter(s)]
__________ __, 19 __
Page 5
Agreement and by the Pooling and Servicing Agreement (a) in the
Contracts and in the proceeds thereof (to the extent a security
interest in proceeds of the Contracts was created as provided in
Section 9-306 of the Virginia UCC) and (b) in that portion of the
[specify any fund pledged by OMI to the Trustee] consisting of those
items and types of collateral a security interest in which may be
perfected by filing a financing statement under the North Carolina UCC.
Upon perfection of OMI's security interest in the Contracts and of the
Trustee's security interest in the Contracts, no other security
interest will be equal or prior to the Trustee's security interest in
the Contracts.
4. Manufactured Homes located in Virginia, North Carolina and
South Carolina that do not become affixed to real estate are subject to
the Virginia Motor Vehicle Code, the North Carolina Motor Vehicle Code
and Chapter 19 of Title 56 of the Code of Laws of South Carolina,
respectively. As such, a security interest in a Manufactured Home
subject to the Virginia Motor Vehicle Code, the North Carolina Motor
Vehicle Code or Chapter 19 of Title 56 of the Code of Laws of South
Carolina generally is required to be noted on the certificate of title
for such Manufactured Home issued by the Virginia Department of Motor
Vehicles, the North Carolina Department of Motor Vehicles or the South
Carolina Department of Highways and Public Transportation,
respectively. [Based upon a representation from OAC that each
certificate of title or application therefor relating to Manufactured
Homes located in Virginia, North Carolina or South Carolina lists OAC
or the Trustee as the first secured party or first lienor, OAC or the
Trustee has (or with respect to applications, will have upon issuance
of a certificate of title identifying OAC or the Trustee as first
secured party or first lienor) a validly perfected first priority
security interest in each Manufactured Home located in Virginia, North
Carolina or South Carolina, and no other filing is required in order to
continue such perfection.]
5. The security interest of the Trustee in the Mortgage Notes
and in those portions of the [specify any fund to be pledged by OMI to
the Trustee] that constitute Money or Instruments and in the proceeds
thereof (but only to the extent provided in Section 9-306 of the
[applicable] UCC) will be perfected upon the delivery of the Mortgage
Notes and such Money or Instruments to the Trustee. Upon such delivery,
no other security interest will be equal or prior to the security
interest of the Trustee in the Mortgage Notes and such Money or
Instruments. No opinion is expressed with respect to the continued
perfection of such security interest in the Mortgage Notes or such
Money or Instruments in the event that the Trustee relinquishes
possession thereof.
Our opinions with respect to the security interests of the Trustee in
items of collateral other than the Manufactured Homes are subject to the
following qualifications:
(a) we call to your attention that a security interest in
proceeds is limited to the extent set forth in Section 9-306 of the
Virginia UCC;
(b) we have assumed that OAC has sufficient rights in all such
collateral for the security interests therein granted pursuant to the
Sales Agreement to attach and that OMI has sufficient rights in all
such collateral for the security interests therein granted or assigned
pursuant to the Pooling and Servicing Agreement to attach;
(c) we have assumed that payment for the Certificates has been
made in accordance with the Underwriting Agreement and the Purchase
Agreement and that payment for the Assets has been made in accordance
with the Sales Agreement;
B2-5
[Name of Underwriter(s)]
__________ __, 19 __
Page 6
(d) we have assumed that the Contracts are Chattel Paper under
the [applicable] UCC and the Mortgage Notes are Instruments as defined
in the [applicable] UCC (but excluding any Instrument constituting a
"certificated security" as defined in Section 8-102 of the [applicable]
UCC);
(e) we have assumed the due execution of each endorsement of
each Mortgage Note, of an assignment or assignments of the Contracts
and of an assignment in recordable form of each Mortgage (an
"Assignment"), in each case from the originators thereof through any
intervening endorsees or assignees to OMI and the validity of each such
endorsement and assignment under relevant state law;
(f) we have assumed that, to the extent required by applicable
state law, each Assignment of a Mortgage securing a Mortgage Loan
necessary to reflect the transfer of such Mortgage from the related
originator to the Trustee has been duly recorded in the proper
recording office subject to no intervening recordations prior to the
date of recordation of such Assignment. We note that Section _______ of
the Standard Terms requires that OMI arrange for the recordation of
such Assignments promptly following closing and, in any event, within
one year after the Closing Date;
(g) we call to your attention that Section 552 of Title 11 of
the United States Code (the "Bankruptcy Code") limits the extent to
which property acquired by a debtor after the commencement of a
proceeding under the Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the debtor
before the commencement of such a proceeding;
(h) we have assumed that any collateral subject to a security
interest that is perfected by delivery to or possession by the Trustee
is, and will be continuously, located in the [state where Trustee is
holding such collateral] and in the possession of the Trustee; we call
to your attention that the perfection and the effect of perfection and
non-perfection of the security interest of the Trustee may be governed
by laws other than the laws of such state to the extent that collateral
becomes located in a jurisdiction other than such state;
(i) we have assumed that the Trustee has not received any
notice as to any security interest in the Contracts or Mortgage Notes
other than a notice with respect to the security interest of the
Trustee;
(j) we have assumed that each Mortgage Note is evidenced by
only one original document; and
(i) we have assumed that there are no agreements or
understandings among OMI, the Trustee, the Servicer or any other party
which would modify, release, terminate or delay the attachment of the
security interest granted to the Trustee under the Pooling and
Servicing Agreement.
As to factual matters, we have relied upon representations included in
the Agreements, in documents delivered at the closing, upon certificates of
officers of OAC, OMI and the Trustee, and upon certificates of public officials.
Without limiting the foregoing, we have relied upon representations and
warranties in the Agreements or upon certificates of OAC, OMI or the Trustee:
B2-6
[Name of Underwriter(s)]
__________ __, 19 __
Page 7
(a) that OAC has the full right to sell each Asset to OMI and
that OMI has the full right to sell each Asset to the Trust, and that,
upon authorization, execution and delivery of the Pooling and Servicing
Agreement by all parties thereto, the Trust will be the sole beneficial
owner of each Asset free and clear of liens, encumbrances and rights of
others;
(b) the Trustee has within its possession the original
Mortgage Note evidencing each Mortgage Loan, an endorsement or an
unbroken chain of endorsements of that Mortgage Note from the original
payee to the Trustee and an Assignment or an unbroken chain of
Assignments in recordable form evidencing the transfer of the Mortgage
related to each Mortgage Loan from the original mortgagee or successor
assignee(s) of record to the Trustee;
(c) that each Asset was acquired by each of OAC, OMI and the
Trustee in the ordinary course of their respective businesses, in good
faith, for value and without notice that it is overdue or has been
dishonored or of any defense against or claim to it on the part of any
person;
(d) as to the absence of any actual or constructive knowledge
or notice by OAC, OMI or the Trustee of any interest contrary to the
Trustee's interests under the Pooling and Servicing Agreement;
(e) that the Trustee (or someone acting on its behalf) has
within its possession any Money or Instrument constituting a portion of
the [specify any fund pledged to the Trustee];
(f) that the Trustee is not an affiliate of OMI; and
(g) that the Obligor's debt evidenced by any Contract is not
separately evidenced by any promissory note or other Instrument.
With respect to the opinion expressed in numbered paragraph 4 above, we
do not express any opinion as to the priority of any security interest in any
Manufactured Home as against any security interest therein or lien thereon that
need not be noted on a certificate of title, including, but not limited to,
liens for storage or for parts and labor incurred with respect to such
Manufactured Home, liens that may arise by the operation of applicable real
estate laws, federal, state and local tax liens, liens noted on a certificate of
title or financing statement filed in another state if a Manufactured Home is
moved to another jurisdiction, and liens created by a manufacturer or dealer who
holds a Manufactured Home in its inventory.
We do not express any opinion as to:
(a) the priority of any security interest as against any claim
or lien in favor of the United States or any State or any agency or
instrumentality of the United States or any State (including, without
limitation, federal tax liens, liens under the Employee Retirement
Income Security Act of 1974, as amended, or claims given priority
pursuant to 31 U.S.C. ss. 3713);
(b) the priority of any security interest as against any
liens, claims, or other interests that arise by operation of law and do
not require any filing or possession or similar action in order to take
priority over a prior perfected security interest under the UCC of any
relevant jurisdiction;
(c) the priority of any security interest as against the
rights of any purchaser of any of the
B2-7
[Name of Underwriter(s)]
__________ __, 19 __
Page 8
Assets who gives new value for and takes possession of such Assets in
the ordinary course of his business without knowledge that any such
Asset is subject to a security interest as described in Section 9-308
of the [applicable] UCC or as against a purchaser of any of the Assets
(including a secured party) who could be afforded priority under
Section 9-309 of the [applicable] UCC;
(d) the priority of any security interest as against a lien
creditor (as defined in Section 9- 301(3) of the [applicable] UCC) who
attached or levied prior to the perfection of the security interest of
the Trustee;
(e) the priority of any security interest as against a lien
creditor to the extent the security interest purports to secure future
advances or other extensions of credit subsequent to the date hereof
other than advances made pursuant to commitments existing on the date
of attachment by such lien creditor;
(f) the priority of any security interest in collateral
constituting proceeds of collateral subject to a third party's security
interest;
(g) the priority of any security interest perfected by filing
a financing statement as against another creditor not required to file
a financing statement under the [applicable] UCC or as against another
secured party in possession of the related collateral prior to the
perfection of the Trustee's security interest through filing of the
Financing Statements;
(h) the priority of any security interest as against a
security interest perfected (i) without possession pursuant to Sections
8-313(1)(i) and 8-321 and Sections 9-304(4) or (5) of the [applicable]
UCC or (ii) without filing pursuant to Sections 9-304(4) or (5) of the
[applicable] UCC;
(i) the priority of any security interest as against a
purchase money security interest that could be perfected without
possession pursuant to Section 8-313(1)(h) of the [applicable] UCC or
and that could be afforded priority under Section 9-312(4) of the
[applicable] UCC;
(j) the priority of any security interest as against another
secured creditor to the extent set forth in Section 9-312(7) of the
[applicable] UCC;
(k) the priority of any security interest as against the
rights of any person against whom the transfer to the Seller or the
Trustee was "wrongful" within the meaning of Section 8-315 of the
[applicable] UCC;
(l) the priority of any security interest as against a
security interest perfected under the laws of another jurisdiction to
the extent the collateral subject to such security interest was located
in such jurisdiction within four months prior to the perfection of the
security interest of the Trustee;
(m) the priority of any security interest as against any
person who has entered into a subordination agreement or intercreditor
agreement with the Trustee with respect to any of the collateral
covered by the opinions set forth above;
(n) whether or to what extent particular items included in the
[specify any fund pledged to Trustee] may constitute Money, General
Intangibles or Instruments;
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[Name of Underwriter(s)]
__________ __, 19 __
Page 9
(o) any portion of the [specify any fund pledged to Trustee]
except to the extent it consists of Money, General Intangibles or
Instruments;
(p) whether any item of collateral was or will be transferred
to the Trustee in the manner described herein or in the Pooling and
Servicing Agreement (and we have made no investigation with respect
thereto); and
(q) the nature or extent of OAC's or OMI's rights in, or title
to, any of the collateral covered by the opinions set forth above.
With respect to the Financing Statements, we call your attention to the
fact that the effectiveness of the Financing Statements will terminate (i)
unless appropriate continuation statements are filed within the time period
prescribed by relevant state law; (ii) with respect to collateral acquired more
than four months after any name change by the debtor, unless new appropriate
financing statements indicating the new name of the debtor are properly filed
before the expiration of four months after the debtor changes its name; and
(iii) four months after any relocation by the debtor of its chief executive
office or principal place of business to a new jurisdiction, unless such
security interest is perfected in such new jurisdiction within such time.
[We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of North Carolina and the United
States of America, except to the extent that the opinion expressed in numbered
paragraph 4 above relates to matters of South Carolina law. With respect to
matters of South Carolina law and to matters of North Carolina law covered by
numbered paragraph 4 above, we have, with your permission, relied upon the
opinion of Messrs. [____________________] dated the date hereof to you as to
matters covered thereby.]
We consent to reliance on this opinion letter by the Trustee and by
[name of rating agencies] for their purposes in issuing letters rating the
Underwritten Certificates. Except as provided in the preceding sentence, this
opinion letter is for your benefit only and may not be relied upon by, nor may
copies be delivered to, any other person without our prior written consent.
Very truly yours,
B2-9
