SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 28, 1999
Oakwood Mortgage Investors, Inc.
--------------------------------
(Exact name of registrant as specified in charter)
Nevada 333-72621 88-0396566
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
101 Convention Center Drive, Suite 850, Las Vegas, Nevada 89109
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (702) 949-0056
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On May 28, 1999, Oakwood Mortgage Investors, Inc., a North
Carolina corporation (the "Predecessor") merged with and into Oakwood
Mortgage Investors, Inc., a Nevada corporation (the "Successor"). Pursuant
to this merger, the Registrant amended various Pooling and Servicing
Agreements, each by and among the Predecessor, Oakwood Acceptance
Corporation ("OAC"), as servicer, and, in the case of certain of the
Pooling and Servicing Agreements, The Bank of New York ("BONY"), as
trustee, and, in the case of certain of the Pooling and Servicing
Agreements, Chase Manhattan Trust Company, National Association (successor
to PNC Bank, National Association) ("Chase"), as trustee. The amendments
of the Pooling and Servicing Agreements are set forth in two Assumption
and Assignment Agreements, each dated May 28, 1999, one among the
Registrant, OAC, and BONY, as trustee, and the other among the Registrant,
OAC and Chase, as trustee. Furthermore, on June 1, 1999 the Registrant
amended and restated each of its articles of incorporation and by-laws
pursuant to resolutions approved by each member of the board of directors
and the sole shareholder.
Item 7. Financial Statements, PRO FORMA Financial Information and Exhibits.
Exhibits
2.1 Plan of Merger, dated May 28, 1999, by and between Oakwood
Mortgage Investors, Inc., a North Carolina corporation, and
Oakwood Mortgage Investors, Inc., a Nevada corporation.
3.1 Amended and Restated Articles of Incorporation of the Registrant.
3.2 Amended and Restated Bylaws of the Registrant.
4.1 Assumption and Amendment Agreement, dated May 28, 1999, to Pooling
and Servicing Agreements dated as of October 1, 1995, February 1,
1996, July 1, 1996, October 1, 1996, February 1, 1997, May 1,
1997, August 1, 1997, November 1, 1997, February 1, 1998, May 1,
1998, August 1, 1998, October 1, 1998, January 1, 1999 and April
1, 1999, among Oakwood Mortgage Investors, Inc., Oakwood
Acceptance Corporation and Chase Manhattan Trust Company, National
Association.
4.2 Assumption and Amendment Agreement, dated May 28, 1999, to Pooling
and Servicing Agreements dated as of November 1, 1994 and June 1,
1995, among Oakwood Mortgage Investors, Inc., Oakwood Acceptance
Corporation and The Bank of New York.
2
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
May 28, 1999 OAKWOOD MORTGAGE
INVESTORS, INC.
By: /s/ Dennis W. Hazelrigg
------------------------
Name: Dennis W. Hazelrigg
Title: President
3
<PAGE>
INDEX TO EXHIBITS
2.1 Plan of Merger, dated May 28, 1999, by and between Oakwood
Mortgage Investors, Inc., a North Carolina corporation, and
Oakwood Mortgage Investors, Inc., a Nevada corporation.
3.1 Amended and Restated Articles of Incorporation of the Registrant.
3.2 Amended and Restated Bylaws of the Registrant.
4.1 Assumption and Amendment Agreement, dated May 28, 1999, to
Pooling and Servicing Agreements dated as of October 1, 1995,
February 1, 1996, July 1, 1996, October 1, 1996, February 1,
1997, May 1, 1997, August 1, 1997, November 1, 1997, February
1, 1998, May 1, 1998, August 1, 1998, October 1, 1998, January
1, 1999 and April 1, 1999, among Oakwood Mortgage Investors,
Inc., Oakwood Acceptance Corporation and Chase Manhattan Trust
Company, National Association.
4.2 Assumption and Amendment Agreement, dated May 28, 1999, to
Pooling and Servicing Agreements dated as of November 1, 1994
and June 1, 1995, among Oakwood Mortgage Investors, Inc.,
Oakwood Acceptance Corporation and The Bank of New York.
4
Exhibit 2.1
PLAN OF MERGER
BETWEEN
OAKWOOD MORTGAGE INVESTORS, INC.,
A NEVADA CORPORATION,
AND
OAKWOOD MORTGAGE INVESTORS, INC.,
A NORTH CAROLINA CORPORATION
MAY 28, 1999
Pursuant to the applicable provisions of the North Carolina Business
Corporation Act and the Nevada Revised Statutes, Oakwood Mortgage Investors,
Inc., a North Carolina corporation, and Oakwood Mortgage Investors, Inc., a
Nevada corporation (hereinafter referred to collectively as the "Constituent
Corporations"), hereby adopt this Agreement of Merger describing the intended
procedure for merging them into one of such Corporations.
A. Corporations Participating in the Merger. The names of the
Constituent Corporations are, respectively, OAKWOOD MORTGAGE INVESTORS,
INC., a North Carolina corporation (hereinafter referred to as the
"Merging Corporation"), and OAKWOOD MORTGAGE INVESTORS, INC., a Nevada
corporation, each of which is a wholly owned subsidiary of Oakwood
Acceptance Corporation, a North Carolina corporation.
B. Surviving Corporation. The corporation that will survive
the merger is OAKWOOD MORTGAGE INVESTORS, INC., a Nevada corporation
(hereinafter referred to as the "Surviving Corporation").
C. Terms and Conditions of The Merger.
1. Date and Effective Time. The merger shall be
effective at 12:01 A.M. Pacific time on May 28, 1999
(hereinafter referred to as the "Effective Time").
2. Corporate Existence, Property and Obligations,
Corporate Organization. At the Effective Time of the merger,
the Surviving Corporation shall succeed to, without other
transfer, and shall possess and enjoy all the rights,
privileges, immunities, powers and franchises, both of a
public and a private nature, and be subject to all the
restrictions,
<PAGE>
disabilities and duties of each of the Constituent
Corporations, and all the rights, privileges, immunities,
powers and franchises of each of the Constituent Corporations
and all property, real, personal and mixed, and all debts due
to either of the Constituent Corporations on whatever account,
for stock subscriptions as well as for all other things in
action or belonging to each of said corporations, shall be
vested in the Surviving Corporation; and all property, rights,
privileges, immunities, powers and franchises, and all and
every other interest shall thereafter be the property of the
Surviving Corporation as they were of the respective
Constituent Corporations, and the title to any real estate
vested by deed or otherwise in either of the Constituent
Corporations shall not revert or be in any way impaired by
reason of the merger; provided, however, that all rights of
creditors and all liens upon any property of either of the
Constituent Corporations shall be preserved unimpaired,
limited to the property affected by such liens at the
Effective Time of the merger, and all debts, liabilities and
duties of the Constituent Corporations, respectively, and all
documents and agreements incidental thereto, or howsoever
otherwise evidenced, shall thenceforth attach to the Surviving
Corporation and may be enforced against it to the same extent
as if said debts, liabilities and duties had been incurred or
contracted by the Surviving Corporation.
The merger of the Constituent Corporation as
described herein shall not affect the validity or
enforceability of any contract of the Merging Corporation or
of the Surviving Corporation or the terms thereof except as
otherwise expressly provided herein.
3. Accounting and Tax Matters. The assets and
liabilities of the Constituent Corporations at the Effective
Time of the merger shall be reflected on the books of the
Surviving Corporation thereafter at the amounts at which they
were carried on the books of the respective Constituent
Corporations.
It is the intent of the Constituent Corporations that
this merger shall qualify as a statutory merger under Section
55-11-07 of the North Carolina Business Corporation Act and
Section 78.461 of the Nevada Revised Statutes and shall
further qualify as a tax-free reorganization under the
provisions of Section 368(a)(1)(A) of the Internal Revenue
Code of 1986, as amended.
<PAGE>
4. Bylaws, Directors, and Officers. The Bylaws of the
Surviving Corporation at the Effective Time shall be governing
thereafter until amended as provided therein or by applicable
law. The Board of Directors and the officers of the Surviving
Corporation at the Effective Time shall remain in those
positions following the merger to serve as provided in the
Bylaws of the Surviving Corporation.
5. Expenses. The Surviving Corporation shall pay all
expenses relating to the merger.
D. Shares of the Constituent Corporations. At the Effective
Time of the merger, the shares of the Constituent Corporations shall be
converted and exchanged as follows:
1. Shares of the Surviving Corporation. The Surviving
Corporation is currently authorized to issue a total of one
thousand (1,000) shares of a single class of common capital
stock having a par value of One Dollar ($1.00) per share
(hereinafter referred to as the "Surviving Corporation Stock")
and currently has issued and outstanding one thousand (1,000)
shares of said stock. All 1,000 of such shares of Surviving
Corporation Stock have been issued to the sole stockholder of
the Surviving Corporation, which entity is also the sole
stockholder of the Merging Corporation. None of these shares
shall be converted as a result of the merger of the
Constituent Corporations as provided herein, but all of such
shares shall remain issued and outstanding shares of Surviving
Corporation Stock.
2. Shares of the Merging Corporation. The Merging
Corporation currently has issued and outstanding one thousand
(1,000) shares of a single class of common capital stock
having a par value of One Dollar ($1.00) per share
(hereinafter referred to as the "Merging Corporation Stock").
At the Effective Time of the merger, each issued and
outstanding share of Merging Corporation Stock shall be
canceled, and the sole holder of Merging Corporation Stock
shall receive no additional stock certificates representing
Surviving Corporation Stock in exchange for its canceled
Merging Corporation Stock, as it already is, and will be at
and immediately after the time of the Merger, the holder of
all issued and outstanding shares of Surviving Corporation
Stock.
After the Effective Time of the merger of the
Constituent Corporations as provided herein, each stock
certificate nominally representing Merging Corporation Stock
shall be deemed for all purposes to have been canceled.
<PAGE>
3. Status of Newly-Issued Surviving Corporation
Stock. All shares of Surviving Corporation Stock shall be
fully paid and non-assessable and the holding of such shares
by the sole holder of all Merging Corporation Stock shall
constitute full satisfaction of all rights pertaining to such
Merging Corporation Stock.
E. Abandonment of Plan of Merger. This Plan of Merger may be
abandoned by vote of a majority of the Board of Directors of the
Merging Corporation or of the Surviving Corporation at any time prior
to the Effective Time of the merger contemplated herein.
F. Articles of Incorporation. At the Effective Time, the
Articles of Incorporation of the Surviving Corporation shall not be
amended in any way.
[Signatures follow]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Plan of Merger
to be duly executed by their respective officers thereunto duly authorized, all
as of the date first above written.
OAKWOOD MORTGAGE INVESTORS, INC.,
a North Carolina corporation
By: /s/ William G. Edwards
-------------------------------
Name: William G. Edwards
Title: President
OAKWOOD MORTGAGE INVESTORS, INC.,
a Nevada corporation
By: /s/ Dennis W. Hazelrigg
-------------------------------
Name: Dennis W. Hazelrigg
Title: President
<PAGE>
I, the undersigned, Secretary of Oakwood Mortgage Investors, Inc., a North
Carolina corporation, hereby certify that the individual who signed on the
preceding page on behalf of Oakwood Mortgage Investors, Inc., a North Carolina
corporation, is the duly elected, qualified and acting President of Oakwood
Mortgage Investors, Inc., a North Carolina corporation, and that the signature
appearing on such preceding page is his genuine signature.
By: /s/ Douglas R. Muir
--------------------------------------------
Name: Douglas R. Muir
Title: Secretary, Oakwood Mortgage Investors, Inc.,
a North Carolina corporation
I, the undersigned, Secretary of Oakwood Mortgage Investors, Inc., a
Nevada corporation, hereby certify that the individual who signed on the
preceding page on behalf of Oakwood Mortgage Investors, Inc., a Nevada
corporation, is the duly elected, qualified and acting President of Oakwood
Mortgage Investors, Inc., a Nevada corporation, and that the signature appearing
above is his genuine signature.
By: /s/ Rebecca L. Howell
--------------------------------------------
Name: Rebecca L. Howell
Title: Secretary, Oakwood Mortgage Investors, Inc.,
a Nevada corporation
Exhibit 3.1
RESTATED ARTICLES OF INCORPORATION
OF
OAKWOOD MORTGAGE INVESTORS, INC.
ARTICLE I
NAME
The name of the Corporation (the "Corporation") is: Oakwood Mortgage
Investors, Inc.
ARTICLE II
RESIDENT AGENT AND ADDRESS
The name of the registered agent of the Corporation and the agent's
street address where process may be served upon the Corporation are:
NAME ADDRESS
CORPORATION TRUST COMPANY One East First Street
OF NEVADA Reno, Nevada 89501
ARTICLE III
PURPOSES
SECTION 3.01. PURPOSES. The purposes for which the Corporation is formed are:
(a) To merge with Oakwood Mortgage Investors, Inc., a North Carolina
corporation (the "Predecessor"), to assume all of the Predecessor's outstanding
obligations, and thereafter to issue bonds ("Bonds") secured primarily by one or
more of the following: (1) manufactured housing retail installment sales
contracts, (2) mortgage loans, and (3) mortgage pass-through certificates or
mortgage-collateralized obligations (items (1), (2) and (3) collectively,
"Collateral") and in connection therewith to acquire, own, hold, sell, transfer,
assign, pledge, finance, refinance and otherwise deal with Collateral.
<PAGE>
(b) To engage in the establishment of one or more trusts to hold pools
of Collateral deposited by the Corporation in such trusts and in consideration
of such deposits, to deliver to the Corporation securities evidencing ownership
interests in such pools of Collateral ("Pass-Through Certificates" and,
collectively with Bonds, the "Securities").
(c) (1) To acquire, own, hold, sell, transfer, assign, pledge, finance,
refinance and otherwise deal in or with the Securities, (2) to acquire, own,
hold, sell, transfer, assign, pledge and otherwise deal in or with Collateral
and (3) to acquire, own, hold, sell, transfer, assign, pledge and otherwise deal
in or with any or all of the ownership interests in trusts established by other
entities, institutions or individuals.
(d) Subsequent to the issuance of any series of Bonds, to sell the
Collateral securing such Bonds to a limited-purpose trust, partnership or
corporation, subject to the lien in favor of such Bonds.
(e) Subject to the limitations contained in Section 3.02 of this
Article III, to engage in any activity that is incidental to or that renders
convenient the accomplishment of any or all of the foregoing and that is not
prohibited by law or required to be set forth specifically in these Articles.
SECTION 3.02. LIMITATIONS. The Corporation shall not perform any act in
contravention of any of the following clauses of this Section 3.02 of Article
III without prior unanimous consent in writing of the Board of Directors,
including the Independent Director (as defined below).
(a) The Corporation shall not engage in any business or
activity other than as authorized in Section 3.01 hereof.
<PAGE>
(b) The Corporation shall not incur, assume or guaranty any
indebtedness except for (1) such indebtedness as (A) may be incurred by
the Corporation in connection with the issuance of the Securities and
(B) provides for recourse solely to the assets pledged to secure such
indebtedness or to entities other than the Corporation, and (2)
indebtedness that by its terms (A) is subordinated to indebtedness of
the Corporation evidenced by Securities and (B) provides that the
holder thereof may not cause the filing of a petition in bankruptcy or
take any similar action against the Corporation until at least 91 days
after every indebtedness of the Corporation evidenced by the Securities
is paid in full.
(c) The Corporation shall not consolidate or merge with or
into any other entity or convey or transfer its properties and assets
substantially as an entirety to any entity, unless:
(1) the entity (if other than the Corporation) formed
in or surviving such consolidation or merger or that acquires
by conveyance or transfer the properties and assets of the
Corporation substantially as an entirety (A) shall be
organized and existing under the laws of the United States of
America or any State or the District of Columbia, and (B)
shall expressly assume, by amendment or supplement to any
indentures, trust agreements or pooling and servicing
agreements (collectively, the "Indentures") pursuant to which
the Securities that are then outstanding may have been issued
by the Corporation or by trusts established by the
Corporation, which amendments and/or supplements must be
executed and delivered to the appropriate trustees under such
Indentures (the
<PAGE>
"Trustees"), in form satisfactory to such Trustees, the due
and punctual payment of the principal of and interest on all
Bonds then outstanding under the Indentures (to the extent
that any series of Bonds provides recourse solely to
Collateral pledged to secure such Bonds, such assumption of
payments shall extend only to the extent of such pledged
Collateral) and the performance of every covenant of the
Indentures on the part of the Corporation to be performed or
observed;
(2) immediately after giving effect to such
transaction, no default or event of default under the
Indentures shall have occurred and be continuing; and
(3) the Corporation shall have delivered to the
Trustees an officers' certificate and an opinion of counsel
each stating that such consolidation, merger, conveyance or
transfer and such supplemental indentures are not prohibited
under the terms of the Indentures and that all conditions
precedent provided for relating to such transaction have been
complied with;
PROVIDED, HOWEVER, that the provisions of this Section 3.02(c) shall not limit
the ability of the Corporation to sell the Collateral securing an outstanding
series of Bonds, subject to the lien in favor of such Bonds, to a
limited-purpose trust, partnership or corporation.
Upon any consolidation or merger with respect to the Corporation, or
any conveyance or transfer of the properties and assets of the Corporation
substantially as an entirety as provided above, the entity formed by or
surviving such consolidation or merger (if other than the Corporation) or the
entity to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Corporation
under the Indentures with the same effect as if such entity had been an original
party to each such Indenture. In the
<PAGE>
event of any such conveyance or transfer, the Corporation may be dissolved,
wound-up and liquidated at any time thereafter, and the Corporation thereafter
shall be released from its liabilities and its obligations under the Indentures.
(d) The Corporation shall not file a petition in bankruptcy.
(e) The Corporation shall not amend, alter, change or repeal
any provision contained in this Article III.
(f) The Corporation shall have at all times at least one
member (an "Independent Director") of the Board of Directors of the
Corporation who is not an employee or an officer of the Corporation or
any of its affiliates, a director of any affiliate of the Corporation
or an owner of 5% or more of the outstanding stock of the Corporation
or any of its affiliates. In the event of the death, incapacity,
resignation or removal of an Independent Director, the Board of
Directors shall promptly appoint a replacement Independent Director.
(g) So long as any Securities remain outstanding, the
Corporation will not cause the issuance of any additional Securities if
such issuance would result in the downgrading or withdrawal of any
ratings assigned to the outstanding Securities by any
nationally-recognized statistical rating organization that rated such
outstanding securities at the request of the Corporation.
(h) The Corporation will observe the following at all times
during its existence:
(1) the Corporation will maintain books and records
separate and apart from those of any other person or entity;
<PAGE>
(2) the Corporation will cause its assets to be
properly allocated to it and to be properly accounted for as
its own assets;
(3) the Corporation will conduct its own business in
its own name;
(4) the Corporation will maintain its own financial
statements separate from those of any other entity;
(5) the Corporation will pay its own liabilities out
of its own funds;
(6) the Corporation will observe all requisite
corporate formalities in connection with its existence and
transaction of business as a Nevada corporation;
(7) the Corporation will maintain an arm's-length
relationship with its affiliates;
(8) the Corporation will not guarantee or become
obligated for the debts of any other entity or hold out its
credit as being available to satisfy the obligations of
others;
(9) the Corporation will allocate fairly and
reasonably any overhead for shared office space or employee
salaries;
(10) the Corporation will use its own stationery and
invoices when corresponding with or billing third parties;
(11) the Corporation will not pledge its assets for
the benefit of any other entity; and
(12) the Corporation will hold itself out as a
separate entity from any other entity.
(i) The Corporation shall not engage in any dissolution or
liquidation.
<PAGE>
ARTICLE IV
AUTHORIZED CAPITAL STOCK
The total number of shares which the Corporation shall have authority
to issue shall be 1,000 shares, $1.00 par value per share. All such
shares shall be of a single class denominated Common Stock, which
shares have unlimited voting rights and represent entitlement to
receive the net assets of the Corporation upon its dissolution.
ARTICLE V
DIRECTORS
The members of the Corporation's governing board shall be Directors.
The number of Directors shall be as specified in the bylaws of the Corporation.
The number of Directors constituting the current Board of Directors is four,
and the names and addresses of these persons are as follows:
Dennis W. Hazelrigg 7800 McCloud Road
-------------------------- Greensboro, NC 27425-7081
Zaklina McGrew 7800 McCloud Road
-------------------------- Greensboro, NC 27425-7081
Monte L. Miller 101 Convention Center Drive
-------------------------- Las Vegas, Nevada 89109
Joshua C. Miller 101 Convention Center Drive
-------------------------- Las Vegas, Nevada 89109
ARTICLE VI
INDEMNIFICATION
The Corporation may arrange to have an affiliate (but may not itself)
provide indemnification to, and advance the expenses of, its directors,
officers, employees and agents to the fullest extent provided under the
provisions of Nevada Revised Statutes ss. 78.751.1 through ss. 78.751.6,
inclusive, as amended from time to
<PAGE>
time, and may purchase and maintain insurance or make other financial
arrangements for such indemnification to the fullest extent permitted by Nevada
Revised Statutes ss. 78.752, as amended from time to time.
Exhibit 3.2
AMENDED AND RESTATED CODE OF BYLAWS
OF OAKWOOD MORTGAGE INVESTORS, INC.
ARTICLE 1
IDENTIFICATION
Section 1.01. Name. The name of the corporation (the "Corporation") is
Oakwood Mortgage Investors, Inc.
Section 1.02. Resident Agent and Address. The name of the resident
agent (the "Resident Agent") and the agent's street address ("Registered
Office") where process may be served upon the Corporation are: Corporation Trust
Company of Nevada, One East First Street, Reno, Nevada 89501. The Resident Agent
shall maintain at the Registered Office:
(a) A copy certified by the Nevada Secretary of State of the
Corporation's Articles of Incorporation, and all amendments
thereto;
(b) A copy certified by an Officer of the Corporation of its
Bylaws and all amendments thereto; and
(c) A stock ledger or duplicate stock ledger, revised annually,
containing the names, alphabetically arranged, of all persons
who are stockholders of the Corporation, showing their places
of residence, if known, and the number of shares of stock held
by them respectively. In lieu of the stock ledger or duplicate
stock ledger, the agent may keep a statement setting out the
name of the custodian of the stock ledger or duplicate stock
ledger, and the present and complete post office address,
including street and number, if any, where the stock ledger or
duplicate stock ledger is kept.
Section 1.03. Other Offices. Other offices may at any time be
established by the Corporation's Board of Directors at any place or places
within or without the State of Nevada where the Corporation is authorized to do
business.
Section 1.04. Seal. The seal of the Corporation shall consist of two
concentric circles between which shall appear the name of the Corporation. In
the center of the seal shall appear the word "SEAL." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced by
any means.
Section 1.05. Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
<PAGE>
ARTICLE 2
CAPITAL STOCK
Section 2.01. Consideration for Shares of Stock. The Corporation may
issue and dispose of its authorized shares of stock for such consideration as
the Board of Directors determines is adequate.
Section 2.02. Certificates Representing Shares of Stock. Each holder of
the capital stock of the Corporation shall be entitled to a certificate signed
by the President or a Vice President, and the Secretary or an Assistant
Secretary of the Corporation, and sealed with the seal of the Corporation,
certifying the number of shares of stock owned by the holder in the Corporation.
Any certificate representing the shares of capital stock will bear the following
legend and the holder of such stock will hold the stock subject to the
restrictions referenced thereby:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), or
the securities or "blue sky" laws of any state. Such shares may not be
offered, sold, pledged or otherwise transferred in the absence of
registration under the Act and all applicable state laws or
qualifications for an exemption from the registration requirements
imposed by the Act and all applicable state laws."
Section 2.03. Transfer of Stock. The Corporation shall register a
transfer of a stock certificate presented to it for transfer if the following
conditions have been fulfilled:
(a) Endorsement. The certificate is properly endorsed by the
registered holder or by the holder's duly authorized attorney.
(b) Witnessing. The endorsement or endorsements are witnessed by
one witness unless this requirement is waived by the Secretary
of the Corporation.
(c) Adverse Claims. The Corporation has no notice of any adverse
claims or has discharged any duty to inquire into any such
claims.
(d) Collection of Taxes. There has been compliance with any
applicable law relating to the collection of taxes.
<PAGE>
ARTICLE 3
THE STOCKHOLDERS
Section 3.01. Place of Meetings. Meetings of the stockholders of the
Corporation shall be held at Bank of America Center, 101 Convention Center
Drive, Las Vegas, Nevada (the "Place of Meeting"), or at such other place as may
be designated by the President or the Board of Directors, or by the written
consent of all stockholders entitled to vote thereat given either before or
after the meeting and filed with the Secretary of the Corporation.
Section 3.02. Annual Meeting. The annual meeting of the stockholders
shall be held on the date and time and at the place set by the board of
directors. Failure to hold the annual meeting shall not cause a forfeiture or
dissolution of the Corporation.
Section 3.03. Special Meetings. Special meetings of the stockholders
may be called by the President, the Board of Directors, or the holder or holders
of not less than one-tenth of all the shares of stock entitled to vote at the
meeting.
Section 3.04. Notice of Meetings - Waiver. Written notice stating the
place, day and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10), nor more than fifty (50), days before the date of the meeting,
either personally, or by mail, or by other means of written communication,
charges prepaid, by or at the direction of the President, the Secretary, or the
Officer or persons calling the meeting, to each registered holder entitled to
vote at such meeting. If mailed, such notice shall be considered to have been
delivered when deposited in the United States mail addressed to the registered
holder at the holder's address as it appears on the stock transfer books of the
Corporation, with postage prepaid. If a stockholder gives no address, notice
shall be deemed to have been given if sent by mail or other written
communication addressed to the Resident Agent of the Corporation, or if
published at least once in some newspaper of general circulation in the county
in which said office is located. Waiver by a stockholder in writing of notice of
a stockholders' meeting shall be equivalent to such stockholder's receipt of
such notice. Attendance by a stockholder, without objection to the notice,
whether in person or by proxy, at a stockholders' meeting shall constitute a
waiver of notice of the meeting.
Section 3.05. Quorum. A majority of the shares of stock entitled to
vote, represented in person or by proxy, shall constitute a quorum at a meeting
of stockholders. The stockholders present at a duly organized meeting may
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum.
Section 3.06. Adjourned Meeting and Notice Thereof. Any stockholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares of stock, the holders
of which are either present in person or represented by proxy thereat, but in
the absence of a quorum no other business may be transacted at any such meeting.
When any stockholders' meeting, either annual or special, is adjourned
for thirty (30) days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. Except as aforesaid, it shall not be
necessary to give any notice of the time and place of
<PAGE>
the adjourned meeting or of the business to be transacted thereat, other than by
announcement at the meeting at which such adjournment is taken.
Section 3.07. Entry of Notice. An entry in the minutes of any meeting
of stockholders, whether annual or special, to the effect that notice has been
duly given, shall be conclusive and incontrovertible evidence that due notice of
such meeting was given to all stockholders as required by applicable law and
these Bylaws.
Section 3.08. Voting. Except as otherwise provided by law, only persons
in whose names shares of stock entitled to vote stand on the stock records of
the Corporation on the day three (3) days prior to any meeting of stockholders,
or, if a record date for voting purposes is fixed as provided in Article 6,
Section 6.01, of these Bylaws, then on such record date, shall be entitled to
vote at such meeting.
The vote of the stockholders shall mean the unanimous written action or
ratification of action of the stockholders or the vote of a majority of the
voting power of the stockholders present in person or by proxy at a telephone or
other meeting of the stockholders, having a quorum and called upon proper notice
or waiver of notice.
Section 3.09. Consent of Absentees. The transaction of any meeting of
stockholders, either annual or special and however called and noticed, shall be
as valid as though had at a meeting duly held after regular call and notice if a
quorum be present either in person or by proxy and if, either before or after
the meeting, each of the stockholders entitled to vote, not present in person or
by proxy, signs a written waiver of notice, or a consent to the holding of such
meeting, or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 3.10. Action or Ratification of Action Without Meeting. Any
action which may be taken or ratified at a meeting of the stockholders may be
taken or ratified without a meeting if authorized in writing by stockholders
holding the percentage of the voting power required by law for taking such
action by written consent and such writing is filed with the Secretary of the
Corporation.
Section 3.11. Proxies. Every person entitled to vote or execute
consents shall have the right to do so either in person or by an agent or agents
authorized by a written proxy executed by such person or the person's duly
authorized agent and reasonable evidence of which is filed with the Secretary of
the Corporation; provided that no such proxy shall be valid after the expiration
of eleven (11) months from the date of its execution unless the person executing
it specified therein the length of time for which such proxy is to continue in
force, which in no event shall exceed seven (7) years from the date of its
execution.
Section 3.12. Telephone Meetings. Stockholders may participate in a
meeting of Stockholders by means of a telephone conference or similar method of
communication by which all persons participating in the meeting can hear each
other. Participation in a meeting pursuant to this section constitutes presence
in person at the meeting.
<PAGE>
Section 3.13. Definition of "Stockholder". As used in these Bylaws, the
term "stockholder," and any term of like import, shall include all persons
entitled to vote the shares of stock held by a stockholder, unless the context
in which such term is used indicates that a different meaning is intended.
ARTICLE 4
THE BOARD OF DIRECTORS
Section 4.01. Number of Directors. The Board of Directors of the
Corporation shall consist of four (4) members. The members of the Board of
Directors need not be stockholders or residents of the State of Nevada. The
number of members of the Board of Directors may be increased or decreased from
time to time as provided in Section 4.02 below.
Section 4.02. Increase or Decrease of Directors. The number of
Directors of the Corporation may be increased or decreased from time to time, at
a meeting of the stockholders, by the affirmative vote of a majority of the
issued and outstanding shares of stock of the Corporation; provided, however,
that the Board shall consist of not more than seven (7) members, and of not less
than three (3) members. This Section of the Code of Bylaws may be amended only
by the affirmative vote at a meeting of the stockholders, of a majority of the
issued and outstanding shares of stock of the Corporation.
Section 4.03. Election. Members of the initial Board of Directors shall
hold office until the first annual meeting of stockholders or until their
successors shall have been elected and qualified. At the first annual meeting of
stockholders and at each annual meeting thereafter, the stockholders shall elect
Directors to hold office until the next succeeding annual meeting. If any such
annual meeting is not held, or the Directors are not elected thereat, the
Directors may be elected at any special meeting of the stockholders held for
that purpose. Each Director shall hold office for the term for which the
Director is elected or until the Director's successor shall be elected and
qualified.
Section 4.04. Vacancies. Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of a majority of the remaining
Directors though less than a quorum of the Board of Directors, or by a sole
remaining Director. A Director elected to fill a vacancy shall be elected for
the unexpired term of the Director's predecessor in office.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in case of the death, resignation or removal of any Directors, or if the
authorized number of Directors be increased, or if the stockholders fail at any
annual or special meeting of stockholders at which any Director or Directors are
elected to elect the full authorized number of Directors to be voted for at that
meeting, or if a vacancy is declared by the Board of Directors for any reason
permitted by law.
The stockholders may elect a Director or Directors at any time to fill
any vacancy or vacancies not filled by the Directors. If the Board of Directors
accepts the resignation of a
<PAGE>
Director tendered to take effect at a future time, the Board or the stockholders
shall have power to elect a successor to take office when the resignation is to
become effective.
No reduction of the authorized number of Directors shall have the
effect of removing any Director prior to the expiration of the Director's term
of office.
Section 4.05. Place of Meetings. Immediately after the annual meeting
of the stockholders, at the same place as the meeting of the stockholders, the
Board of Directors shall meet each year for the purpose of organization,
election of Officers, and consideration of any other business that may properly
be brought before the meeting. No notice of any kind to either old or new
members of the Board of Directors for this annual meeting shall be necessary
unless the meeting is to be held at a place other than the Place of Meeting
provided in Section 3.01, in which case notice of the place of the meeting shall
be given as provided in Section 4.07.
Section 4.06. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and places within or without the State of
Nevada as may be designated from time to time by resolution of the Board or by
written consent of all members of the Board. No notice of any kind to members of
the Board for these regular meetings shall be necessary unless the meeting is to
be held at a place other than the Place of Meeting provided in Section 3.01, in
which case notice of the place of the meeting shall be given as provided in
Section 4.07.
Section 4.07. Other Meetings. Other meetings of the Board of Directors
for any purpose or purposes may be held at any time upon call by the President
or, if the President is absent or is unable to or refuses to act, by any Vice
President or by any two (2) Directors. Such meetings may be held at any place
within or without the State of Nevada as may be designated from time to time by
resolution of the Board or by written consent of all members of the Board.
Written notice of the time and place of other meetings shall be
delivered personally to each Director or sent to each Director by mail or other
form of written communication, charges prepaid, addressed to the Director at the
Director's address as it is shown upon the records of the Corporation or, if it
is not so shown on such records or is not readily ascertainable, at the place in
which the meetings of the Directors are regularly held. In case such notice is
mailed, it shall be deposited in the United States mail at least one hundred
twenty (120) hours prior to the time of the holding of the meeting. In case such
notice is personally delivered, it shall be so delivered at least twenty-four
(24) hours prior to the time of the holding of the meeting. Such mailing or
delivery as above provided shall constitute due, legal and personal notice to
such Director.
Section 4.08. Notice of Adjourned Meetings. Notice of the time and
place of holding an adjourned meeting need not be given to absent Directors if
the time and place be fixed at the meeting adjourned.
Section 4.09. Entry of Notice. An entry in the minutes of any special
meeting of the Board of Directors to the effect that notice has been duly given
shall be conclusive and incontrovertible evidence that due notice of such
special meeting was given to all Directors as required by law and by these
Bylaws.
<PAGE>
Section 4.10. Waiver of Notice. The transactions of any meeting of the
Board of Directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice, if a
quorum be present, and if, either before or after the meeting, each of the
Directors not present signs a written waiver of notice or a consent to holding
such meeting or an approval of the minutes thereof. All such waivers, consents
or approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 4.11. Quorum. A majority of the authorized number of Directors
shall be necessary to constitute a quorum for the transaction of business,
except to adjourn a meeting as hereinafter provided. Every act or decision done
or made by a majority of the Directors present at a meeting, duly held at which
a quorum is present, shall be regarded as the act of the Board of Directors
unless a greater number be required by law or by the Corporation's Articles of
Incorporation.
Section 4.12. Adjournment. A quorum of the Directors may adjourn any
Directors' meeting to meet again at a stated day and hour; provided, however,
that in the absence of a quorum, a majority of the Directors present at any
Directors' meeting, either regular or special, may adjourn from time to time
until the time fixed for the next regular meeting of the Board.
Section 4.13. Action Without Meeting. Any action which may be taken or
ratified at a meeting of the Board of Directors may be taken or ratified without
a meeting if all members of the Board of Directors shall individually or
collectively consent, in writing, to such action. Such action by written consent
shall have the same force and effect as a unanimous vote of such Directors. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Board.
Section 4.14. Telephone Meetings. Members of the board of directors or
of any committee designated by the board may participate in a meeting of the
board or committee by means of a telephone conference or similar method of
communication by which all persons participating in the meeting can hear each
other. Participation in a meeting pursuant to this section constitutes presence
in person at the meeting.
Section 4.15. Voting. The vote of the directors shall mean the
unanimous written action or ratification of action of the directors or the vote
of a majority of the voting power of the directors present in person or by proxy
at a telephone or other meeting of the directors, having a quorum and called
upon proper notice or waiver of notice.
Section 4.16. Fees and Compensation. Directors shall not receive any
stated salary for their services as Directors or as members of committees, but,
by resolution of the Board, a fixed fee, with or without expenses of attendance,
may be allowed to Directors for such services. Nothing herein contained shall be
construed to preclude any Director from serving the Corporation in any other
capacity as an Officer, agent, employee or otherwise, and receiving compensation
therefor.
<PAGE>
Section 4.17. Indemnification of Directors and Officers. The following
provisions are in addition to any other rights and remedies of a person for
advancement of expenses or indemnification by law or contract, or as determined
by a court of competent jurisdiction. A director or officer of the corporation,
or a director, officer, partner, manager, or trustee of another corporation,
partnership, limited liability company, trust or other business venture serving
at the request of the corporation (in this section, "Person") may be eligible
for indemnification or advancement of expenses. Expenses subject to
indemnification or advancement include expenses incurred because the Person was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether or not by or in the right of the corporation, by reason
of the fact of the Person's duties to or on behalf of the corporation (in this
section, "Litigation"). The character of expenses subject to indemnification or
advancement include attorneys' fees, costs, judgments, fines, and amounts paid
in settlement actually and reasonably incurred by the Person in connection with
the Litigation (in this section, "Costs"), but exclude judgments in favor of the
corporation and amounts paid in settlement with the corporation and attorneys'
fees and costs incurred in connection with such judgments or settlements. To the
fullest extent permitted under Nevada Revised Statutes ss. 78.751, the
Corporation may arrange to have an affiliate (but may not itself) pay the Costs
of Persons incurred in Litigation as they are incurred and in advance of the
final disposition of the Litigation, upon receipt of an undertaking by or on
behalf of the person to repay the amount if it is ultimately determined by a
court of competent jurisdiction that the Person is not entitled to
indemnification by the corporation. To the fullest extent permitted under Nevada
Revised Statutes ss. 78.751, the Corporation may arrange to have an affiliate
(but may not itself) indemnify each Person against his Costs incurred in
Litigation, regardless of the conduct of the Person, unless a final
adjudication, after exhaustion of all appeals therefrom, establishes that the
Person's acts or omissions involved intentional misconduct, fraud or a knowing
violation of applicable law and were material to the cause of action.
Section 4.18. Powers of Directors. Subject to limitations set forth in
the Articles of Incorporation, in these Bylaws, and in applicable law as to
action to be authorized or approved by the stockholders and subject to the
duties of Directors as prescribed by these Bylaws, all corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be controlled by, the Board of Directors. Without prejudice to
such general powers, but subject to the same limitations, it is hereby expressly
declared that the Directors shall have the following powers, to-wit:
First: To select and remove all Officers, agents and employees
of the Corporation, prescribe such powers and duties for them as may
not be inconsistent with applicable law, with the Articles of
Incorporation or the Bylaws, fix their compensation, and require from
them security for faithful service.
Second: To conduct, manage and control the affairs and
business of the Corporation and to make such rules and regulations
therefor not inconsistent with applicable law, with the Articles of
Incorporation or these Bylaws, as they may deem best.
<PAGE>
Third: To change the Resident Agent or the Registered Office;
to change the Place of Meeting provided in Section 3.01; to fix and
locate from time to time one or more other offices of the Corporation,
within or without the State of Nevada as provided in Article 1, Section
1.03, hereof; to designate any place within or without the State of
Nevada for the holding of any stockholders' meeting or meetings; and to
adopt, make and use a corporate seal, and to prescribe the forms of
certificates of stock, and to alter the form of such seal and of such
certificates from time to time, as in their judgment they may deem
best, provided such seal and such certificates shall at all times
comply with the provisions of applicable law.
Fourth: To borrow money and incur indebtedness for the
purposes of the Corporation, and to cause to be executed and delivered
therefor, in the corporate name, promissory notes, bonds, debentures,
deeds of trust, mortgages, pledges, hypothecations or other evidences
of debt and securities therefor, except as limited by the Articles of
Incorporation; provided, that no evidence of indebtedness shall be
issued in the Corporation's name unless authorized by a resolution of
its Board of Directors.
Fifth: To authorize the issue of shares of stock of the
Corporation for such consideration as the Board of Directors determines
is adequate.
Sixth: To adopt and administer, or provide for the
administration of, employee stock purchase plans, employee stock option
plans and any other plans or arrangements whereby Directors, Officers,
employees or agents of the Corporation or any other entity may be
entitled to acquire authorized but unissued or treasury stock or other
securities of the Corporation, upon such terms and conditions as may
from time to time be permitted by law.
Seventh: To appoint an Executive Committee and other
committees, and to delegate to such Executive Committee any of the
powers and authority of the Board in the management of the business and
affairs of the Corporation, except the power to declare distributions
and to adopt, amend or repeal Bylaws. The Board of Directors shall have
the power to prescribe the manner in which proceedings of the Executive
Committee and other committees shall be conducted. The committees shall
keep regular minutes of their meetings and report the same to the Board
when required. Any such Executive Committee shall be composed of two
(2) or more Directors.
Eighth: To lend money in furtherance of any of the purposes of
the Corporation; to invest the funds of the Corporation from time to
time; and to take and hold any property as security for the payment of
funds so loaned or invested; provided, that no loans shall be
contracted on behalf of the Corporation unless authorized by a
resolution of its Board of Directors.
Ninth: To lend money to employees, Officers and Directors, and
otherwise to assist employees, Officers and Directors; provided, that
no loans shall be contracted on behalf of the Corporation unless
authorized by a resolution of its Board of Directors. A
<PAGE>
loan to a member of the Board of Directors shall be made only upon the
approval of a majority of the Board of Directors excluding the Director
to whom the loan is to be made.
Tenth: To declare distributions upon the capital stock of the
Corporation in cash, in property, or in shares of the capital stock,
subject to the limitations set forth in the Articles of Incorporation
and in applicable law. Before payment of any distribution, there may be
set aside out of the funds of the Corporation available for
distributions, such sum or sums as the Directors, from time to time, in
their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing distributions, or for repairing
or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interests of the
Corporation, and the Directors may modify or abolish any such reserve
in the manner in which it was created.
ARTICLE 5
THE OFFICERS
Section 5.01. Officers. The Officers of the Corporation shall be a
President, a Secretary and a Treasurer, and each of them shall be appointed by
the Board of Directors. The Corporation may also have such other executive
officers, including one (1) or more Vice Presidents, one (1) or more Assistant
Secretaries and one (1) or more Assistant Treasurers, as may be appointed by the
Board of Directors, and such subordinate Officers as may be appointed in
accordance with the provisions of Section 5.03 of this Article 5. Officers,
other than the President, need not be Directors. One person may hold two (2) or
more offices, except those of President and Secretary. However, if the
Corporation only has one stockholder, then one person may hold the offices of
both President and Secretary.
Section 5.02. Election. The Officers of the Corporation, except such
Officers as may be appointed in accordance with the provisions of Section 5.03
or Section 5.05 of this Article 5, shall be chosen annually by the Board of
Directors, and each shall hold office until the Officer shall resign or shall be
removed or otherwise disqualified to serve, or the Officer's successor shall be
elected and qualified to serve; provided that Officers may be appointed at any
time by the Board of Directors, or, as permitted by Section 5.03 of this
Article, by the President, for the purpose of initially filling an office or
filling a newly created or vacant office.
Section 5.03. Subordinate Officers. The Board of Directors may appoint,
and may empower the President to appoint, such other Officers as the business of
the Corporation may require, each of whom shall hold office for such period,
have such authority and perform such duties as are provided in these Bylaws or
as the Board of Directors (or the President, if so authorized by the Board of
Directors) may from time to time determine.
Section 5.04. Removal and Resignation. Any Officer may, subject to any
contractual arrangements between the Officer and the Corporation, be removed,
either with or without cause, by a majority of the Directors in office at the
time, at any regular or special meeting of the Board,
<PAGE>
or, except in case of an Officer chosen by the Board of Directors, by an Officer
upon whom such power of removal may be conferred by the Board of Directors.
Any Officer may resign at any time by giving written notice to the
Board of Directors or to the President, or to the Secretary of the Corporation.
Any such resignation shall take effect at the date of the receipt of such notice
or at any later time specified therein, and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 5.05. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular appointments to such office.
Section 5.06. President. Subject to such supervisory powers, if any, as
may be given by the Board of Directors to an Officer senior to the President, if
there be such an Officer, the President shall be the chief executive officer of
the Corporation and shall, subject to the control of the Board of Directors,
have general supervision, direction and control of the business and Officers of
the Corporation. The President shall preside at all meetings of the
stockholders, and, in the absence of the Chairman of the Board, or Officer
senior to the President, or if there be none, at all meetings of the Board of
Directors. The President shall be ex officio a member of all the standing
committees, including the Executive Committee, if any, and shall have the
general powers and duties of management usually vested in the office of
president of a Corporation, and such other powers and duties as may be
prescribed by the Board of Directors or these Bylaws.
Section 5.07. Vice Presidents. In the absence or disability of the
President, the Vice Presidents, in order of their rank, as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall have such other powers and perform such
other duties as may be prescribed for them respectively by the Board of
Directors, the President or these Bylaws.
Section 5.08. Secretary. The Secretary shall keep or cause to be kept,
at the Registered Office or such other place as the Board of Directors may
order, a book of minutes of all meetings of Directors and stockholders, with the
time and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at Directors'
meetings, the number of shares of stock present or represented at stockholders'
meetings, and the proceedings thereof.
The Secretary shall keep or cause to be kept, in any form permitted by
law, at the Registered Office or at the office of the Corporation's transfer
agent, a stock ledger, or a duplicate stock ledger, showing the names of the
stockholders and their addresses, the number and classes of shares of stock held
by each, the number and date of certificates issued for shares of stock, and the
number and date of cancellation of every certificate surrendered for
cancellation.
<PAGE>
The Secretary shall give, or cause to be given, notice of all the
meetings of the stockholders and of the Board of Directors required by these
Bylaws or by applicable law to be given, and shall keep the seal of the
Corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors, the President or
these Bylaws.
Section 5.09. Treasurer. The Treasurer shall keep and maintain, or
cause to be kept and maintained, adequate and correct accounts of the properties
and business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and shares
of stock. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of stated capital, shall be classified according to
source and shown in a separate account. The books of account shall at all times
be open to inspection by any Director.
The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the Corporation with such depositories as may be designated
by the Board of Directors; shall disburse the funds of the Corporation as may be
ordered by the Board of Directors; shall render to the President and Directors,
whenever they request it, an account of all transactions entered into by the
Corporation and of the financial condition of the Corporation; and shall have
such other powers and perform such other duties as may be prescribed by the
Board of Directors, the President or these Bylaws. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of the office and for the restoration to
the Corporation, in case of the Treasurer's death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in the possession or control of the Treasurer and belonging to the
Corporation.
Section 5.10. Assistant Secretaries and Assistant Treasurers. The
Assistant Secretaries and Assistant Treasurers, if any, shall in the absence or
disability of the Secretary and the Treasurer, respectively, have all the powers
and perform all of the duties of those offices, and shall in general perform
such other duties as shall be assigned to them by the Secretary or Treasurer,
respectively, or by the President or the Board of Directors.
Section 5.11. Corporate Bank Accounts. Bank accounts in the name of the
Corporation may be opened without the approval of the Board of Directors if
opened with the consent of both the President and Treasurer of the Corporation.
The Treasurer shall inform the Board of Directors of any bank account opened by
the President and Treasurer of the Corporation pursuant to the authority granted
in this section at the next meeting of the Board of Directors after the opening
of the account.
Section 5.12. Transfers of Authority. In case of the absence of any
Officer of the Corporation, or for any reason that the Board of Directors may
consider sufficient, the Board of Directors may transfer the powers or duties of
that Officer to any other Officer or to any Director or employee of the
Corporation, provided a majority of the full Board of Directors concurs.
<PAGE>
Section 5.13. Resident Agent and Registered Office. The Resident Agent
and/or Registered Office of the Corporation may be changed by two Officers, one
of whom must be either the President or the Secretary of the Corporation,
without the approval of the Board of Directors. One of the Officers shall inform
the Board of Directors of any change pursuant to the authority granted in this
section at the next meeting of the Board of Directors after such change is
implemented.
ARTICLE 6
MISCELLANEOUS
Section 6.01. Record Date and Closing Stock Books. The Board of
Directors may fix a time in the future, as a record date for the determination
of the stockholders entitled to notice of and to vote at any meeting of
stockholders, or entitled to receive any dividend or distribution, or any
allotment of rights, or to exercise rights in respect to any change, conversion
or exchange of shares of stock. The record date so fixed shall not be more than
fifty (50) days prior to the date of the meeting or event for the purposes of
which it is fixed. When a record date is so fixed, only stockholders of record
on that date shall be entitled to notice of and to vote at the meeting, or to
receive the dividend, distribution or allotment of rights, or to exercise the
rights, as the case may be, notwithstanding any transfer of any shares of stock
on the books of the Corporation after the record date. The Board of Directors
may close the books of the Corporation against transfers of shares of stock
during the whole or any part of any such fifty (50) day period.
Section 6.02. Inspection of Corporate Records. The stock ledger or
duplicate stock ledger, the books of account and minutes of proceedings of the
stockholders and the Board of Directors and the Executive Committee, if any,
shall be open to inspection upon the written demand of any stockholder or holder
of a voting trust certificate, at any reasonable time, and for a purpose
reasonably related to the interests of the holder as a stockholder or as the
holder of a voting trust certificate, and shall be exhibited at any time when
required by the demand at any stockholders' meeting of the holders of ten
percent (10%) of the shares of stock represented at the meeting. Such inspection
may be made in person or by an agent or attorney, and shall include the right to
make extracts. Demand of inspection other than at a stockholders' meeting shall
be made in writing upon the President, Secretary or Assistant Secretary or
general manager, if any, or the Corporation.
Section 6.03. Checks, Drafts, Etc. All checks, drafts, bonds, bills of
exchange, or other orders for payment of money, notes, or other evidences of
indebtedness issued in the name or payable to the Corporation shall be signed or
endorsed by such person or persons and in such manner as, from time to time,
shall be determined by resolution of the Board of Directors.
Section 6.04. Contracts, Etc., How Executed. The Board of Directors,
except as in these Bylaws otherwise provided, may authorize any Officer or
Officers, agent or agents, to enter into any contract or execute any instrument
or document in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances. The Board of Directors may
designate Officers or employees of the Corporation who may, in the name of the
<PAGE>
Corporation, sign any such instrument or document and may authorize the use of
facsimile signatures of any of such persons. No Officer, agent or employee shall
have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit to render it liable for any purpose or to any
amount except as specifically authorized in these Bylaws or by the Board of
Directors in accordance with these Bylaws.
Section 6.05. Certificates of Stock. A certificate or certificates for
shares of the capital stock of the Corporation shall be issued to each
stockholder when any such shares of stock are fully paid up. All such
certificates shall be signed by the President or a Vice President and the
Secretary or an Assistant Secretary, or be authenticated by facsimiles of the
signatures of the President and Secretary or by a facsimile of the signature of
the President and the written signature of the Secretary or an Assistant
Secretary. Before it becomes effective every certificate authenticated by a
facsimile of a signature must be counter-signed by a transfer agent or transfer
clerk and registered by an incorporated bank or trust company, either domestic
or foreign, as registrar of transfers, as required or permitted by law.
In case any Officer or Officers who shall have signed, or whose
facsimile signature or signatures shall have been used on, any such certificate
or certificates shall cease to be such Officer or Officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or person who signed such certificate or
certificates, or whose facsimile signature or signatures shall have been used
thereon, had not ceased to be the Officer or Officers of such Corporation.
Section 6.06. Lost Certificates of Stock. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, destroyed, or stolen, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to have been lost or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion, and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate or
certificates, or the owner's legal representative, to advertise the same in such
manner as it shall require and/or give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed.
Section 6.07. Representation of Shares of Stock of Other Corporations.
The President or any Vice President and the Secretary or any Assistant Secretary
of this Corporation are authorized to vote, represent and exercise on behalf of
this Corporation all rights incident to any and all shares of stock of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
Corporation any and all shares of stock held by this Corporation in any other
corporation or corporations may be exercised either by such officers in person
or by any persons authorized so to do by proxy or power of attorney duly
executed by said Officers.
<PAGE>
Section 6.08. Inspection of Bylaws. The Corporation shall keep at the
Registered Office the original or a copy of the Bylaws as amended or otherwise
altered to date, certified by the Secretary, which shall be open to inspection
by the stockholders at all reasonable times during office hours.
Section 6.09. Conflict. In the event of any conflict between any
provision in these Bylaws and in the Corporation's Articles of Incorporation,
the provision of the Articles of Incorporation shall control.
ARTICLE 7
AMENDMENTS
Section 7.01. Power of Stockholders. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the vote or written assent of stockholders
entitled to exercise a majority of the voting power of the Corporation, except
as otherwise provided by applicable law or by the Articles of Incorporation.
Section 7.02. Power of Directors. Subject to the right of stockholders
as provided in Section 7.01 of this Article 7 to adopt, amend or repeal Bylaws,
Bylaws may be adopted, amended, or repealed by the Board of Directors; provided,
however, that a Bylaw or amendment thereof changing the authorized number of
Directors may be adopted, amended or repealed only by the stockholders, except
that if a flexible number of Directors is authorized by the Articles of
Incorporation or these Bylaws, a Bylaw or amendment thereof fixing the exact
number of Directors within the limits specified in the Articles of Incorporation
or these Bylaws may be adopted, amended or repealed by the Board of Directors
alone.
Exhibit 4.1
=============================================================================
OAKWOOD MORTGAGE INVESTORS, INC.,
OAKWOOD ACCEPTANCE CORPORATION,
AND
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
Trustee
----------------------------------------
ASSUMPTION AND AMENDMENT AGREEMENT
Dated May 28, 1999
TO
POOLING AND SERVICING AGREEMENTS
Dated as of October 1, 1995
February 1, 1996, July 1, 1996, October 1,
1996, February 1, 1997, May 1, 1997, August 1, 1997,
November 1, 1997,
February 1, 1998, May 1, 1998, August 1, 1998,
October 1, 1998, January 1, 1999 and April 1, 1999
-----------------------------------------
==============================================================================
<PAGE>
THIS ASSUMPTION AND AMENDMENT AGREEMENT (the "Amendment"), dated May
28, 1999, is among Oakwood Mortgage Investors, Inc., a Nevada corporation (the
"Successor"), successor by merger to Oakwood Mortgage Investors, Inc., a North
Carolina corporation (the "Predecessor" and, together with the Successor,
"OMI"), Oakwood Acceptance Corporation, a North Carolina corporation (the
"Servicer"), and Chase Manhattan Trust Company, National Association (successor
to PNC Bank, National Association), as trustee (the "Trustee"), under pooling
and servicing agreements dated as of October 1, 1995, February 1, 1996, July 1,
1996, October 1, 1996, February 1, 1997, May 1, 1997, August 1, 1997, November
1, 1997, February 1, 1998, May 1, 1998, August 1, 1998, October 1, 1998, January
1, 1999 and April 1, 1999, as heretofore supplemented and amended (the
"Agreements"). All terms capitalized but not otherwise defined herein shall have
the meanings assigned to them in the Agreements.
OMI desires to amend the Agreements, pursuant to Section 11.01 of the
Standard Terms to Pooling and Servicing Agreement as incorporated by reference
into each such Agreement (the "Standard Terms"), to provide for the assumption
by the Successor of all of OMI's representations, warranties, covenants and
other obligations in the Agreements.
Section 11.01 of the Standard Terms provides that, without the consent
of any Certificateholders OMI, the Servicer and the Trustee, from time to time,
may amend an Agreement to correct or supplement any provisions thereof that may
be inconsistent with any other provisions thereof.
Section 6.04 of the Standard Terms contemplates that OMI may be merged
with another entity, and states that any successor by merger to OMI shall be the
successor to OMI without the execution or filing of any document or any further
act by any parties to any Agreement, anything in the Standard Terms to the
contrary notwithstanding. However, in various places in the Standard Terms,
reference is made to OMI as a North Carolina corporation. This Amendment is to
confirm the succession of the Successor to the rights and obligations of OMI
under each Agreement, and to make clear that the fact that the Successor is not
a North Carolina corporation is not a violation of any Agreement.
NOW THEREFORE, in consideration of the premises set forth above, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each Agreement hereby is amended as follows:
1. The definition of "OMI" in Section 1.01 of the Standard Terms is
amended by the replacement of the word "Nevada" for the words "North Carolina"
therein.
2. Section 6.02(a) of the Standard Terms is amended by the deletion of
the words "State of North Carolina" therein and the replacement therefor of the
words "jurisdiction under the laws of which OMI was organized."
3. Pursuant to Section 6.04 of the Standard Terms, the Successor hereby
expressly assumes all of the rights and obligations of the Predecessor under
each Agreement.
<PAGE>
4. The address of OMI set forth in Section 11.04 of the Standard Terms
and in various Exhibits to the Standard Terms is changed to: c/o Nevada Holding
Services, Inc., Bank of America Center, 101 Convention Center Drive, Henderson,
Nevada 89109.
5. As supplemented and amended by this Amendment, each Agreement as
heretofore supplemented and amended is ratified and confirmed in all respects
and each Agreement as so supplemented and amended by this Amendment shall be
read, taken and construed as one and the same instrument.
6. This Amendment may be executed in any number of counterparts with
the same effect as if all of the parties hereto had signed the same document.
Each such counterpart shall constitute an original of this Amendment, and all
such counterparts shall together constitute but one and the same instrument.
7. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Agreements as heretofore supplemented
and amended. References to Sections herein shall be deemed references to
Sections of the Standard Terms.
<PAGE>
IN WITNESS WHEREOF, the Successor, the Servicer and the Trustee have
caused this Amendment to be duly executed by their respective Officers thereunto
duly authorized, all as of the day and year first above written.
OAKWOOD MORTGAGE INVESTORS, INC.,
a Nevada corporation
By: /s/ Dennis W. Hazelrigg
-------------------------------
Name: Dennis W. Hazelrigg
Title: President
OAKWOOD ACCEPTANCE CORPORATION,
a North Carolina corporation
By: /s/ Myles E. Standish
-------------------------------
Name: Myles E. Standish
Title: Senior Vice President
CHASE MANHATTAN TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Judy A. Wisniewski
-------------------------------
Name: Judy A. Wisniewski
Title: Assistant Vice President
Exhibit 4.2
===============================================================================
OAKWOOD MORTGAGE INVESTORS, INC.,
OAKWOOD ACCEPTANCE CORPORATION,
AND
THE BANK OF NEW YORK,
Trustee
----------------------------------------
ASSUMPTION AND AMENDMENT AGREEMENT
Dated May 28, 1999
TO
POOLING AND SERVICING AGREEMENTS
Dated as of November 1, 1994 and June 1, 1995,
-----------------------------------------
===============================================================================
<PAGE>
THIS ASSUMPTION AND AMENDMENT AGREEMENT (the "Amendment"), dated May
28, 1999, is among Oakwood Mortgage Investors, Inc., a Nevada corporation (the
"Successor"), successor by merger to Oakwood Mortgage Investors, Inc., a North
Carolina corporation (the "Predecessor" and, together with the Successor,
"OMI"), Oakwood Acceptance Corporation, a North Carolina corporation (the
"Servicer"), and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee"), under pooling and servicing agreements dated as of
November 1, 1994 and June 1, 1995, as heretofore supplemented and amended (the
"Agreements"). All terms capitalized but not otherwise defined herein shall have
the meanings assigned to them in the Agreements.
OMI desires to amend the Agreements, pursuant to Section 11.01 of the
Standard Terms to Pooling and Servicing Agreement as incorporated by reference
into each such Agreement (the "Standard Terms"), to provide for the assumption
by the Successor of all of OMI's representations, warranties, covenants and
other obligations in the Agreements.
Section 11.01 of the Standard Terms provides that, without the consent
of any Certificateholders OMI, the Servicer and the Trustee, from time to time,
may amend an Agreement to correct or supplement any provisions thereof that may
be inconsistent with any other provisions thereof.
Section 6.04 of the Standard Terms contemplates that OMI may be merged
with another entity, and states that any successor by merger to OMI shall be the
successor to OMI without the execution or filing of any document or any further
act by any parties to any Agreement, anything in the Standard Terms to the
contrary notwithstanding. However, in various places in the Standard Terms,
reference is made to OMI as a North Carolina corporation. This Amendment is to
confirm the succession of the Successor to the rights and obligations of OMI
under each Agreement, and to make clear that the fact that the Successor is not
a North Carolina corporation is not a violation of any Agreement.
NOW THEREFORE, in consideration of the premises set forth above, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each Agreement hereby is amended as follows:
1. The definition of "OMI" in Section 1.01 of the Standard Terms is
amended by the replacement of the word "Nevada" for the words "North Carolina"
therein.
2. Section 6.02(a) of the Standard Terms is amended by the deletion of
the words "State of North Carolina" therein and the replacement therefor of the
words "jurisdiction under the laws of which OMI was organized."
3. Pursuant to Section 6.04 of the Standard Terms, the Successor hereby
expressly assumes all of the rights and obligations of the Predecessor under
each Agreement.
4. The address of OMI set forth in Section 11.04 of the Standard Terms
and in various Exhibits to the Standard Terms is changed to: c/o Nevada Holding
Services, Inc., Bank of America Center, 101 Convention Center Drive, Henderson,
Nevada 89109.
5. As supplemented and amended by this Amendment, each Agreement as
heretofore supplemented and amended is ratified and confirmed in all respects
and each Agreement as so supplemented and amended by this Amendment shall be
read, taken and construed as one and the same instrument.
<PAGE>
6. This Amendment may be executed in any number of counterparts with
the same effect as if all of the parties hereto had signed the same document.
Each such counterpart shall constitute an original of this Amendment, and all
such counterparts shall together constitute but one and the same instrument.
7. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Agreements as heretofore supplemented
and amended. References to Sections herein shall be deemed references to
Sections of the Standard Terms. References to Section 6.07(d) of the Standard
Terms shall be deemed references to Section 6.04 of the Standard Terms.
<PAGE>
IN WITNESS WHEREOF, the Successor, the Servicer and the Trustee have
caused this Amendment to be duly executed by their respective Officers thereunto
duly authorized, all as of the day and year first above written.
OAKWOOD MORTGAGE INVESTORS, INC.,
a Nevada corporation
By: /s/ Dennis W. Hazelrigg
-------------------------------
Name: Dennis W. Hazelrigg
Title: President
OAKWOOD ACCEPTANCE CORPORATION,
a North Carolina corporation
By: /s/ Myles E. Standish
-------------------------------
Name: Myles E. Standish
Title: Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Robert P. Muller
-------------------------------
Name: Robert P. Muller
Title: Assistant Vice President
