PURCHASE AGREEMENT, CONSENT AND RELEASE

Transcription

1 PURCHASE AGREEMENT, CONSENT AND RELEASE The undersigned, Niagara Tobacco Asset Securitization Corporation ("NTASC") and Oppenheimer Rochester Fund Municipals, Oppenheimer Rochester AMT-Free New York Municipal Fund and Oppenheimer Rochester High Yield Municipal Fund (collectively, the "Funds"), hereby agree to enter into this Purchase Agreement, Consent and Release (this "Agreement") dated as of July 31, 2014, upon the terms and conditions and upon the basis of the representations, warranties and agreements set forth in this Agreement. 1. Purchase of Bonds. NTASC agrees to purchase from the Funds, and the Funds agree to sell to NTASC, all of the $6,572,480 initial principal amount of outstanding New York Counties Tobacco Trust V Tobacco Settlement Pass-Through Bonds (the "NYCTT V Bonds"), Series 2005 S4B (Subordinate Turbo CABS) attributable to NTASC (the "NTASC S4B Bonds") at a purchase price of 52% of the accreted value of the NTASC S4B Bonds (the "Purchase Price") on the purchase date (the "Closing Date")1. Notwithstanding anything in this Agreement to the contrary or otherwise, the purchase by NTASC of the NTASC S4B Bonds shall be conditioned upon the successful issuance, sale and delivery of NTASC's Tobacco Settlement Asset-Backed Bonds, Series 2014 (the "Series 2014 Bonds") and the Purchase Price of the NTASC S4B Bonds shall be payable solely from the proceeds of the Series 2014 Bonds. Upon the purchase of the NTASC S4B Bonds from the Funds, NTASC shall cause the NTASC S4B Bonds to be delivered to Manufacturers and Traders Trust Company, as trustee for the NYCTT V Bonds, for cancellation. In such capacity, Manufacturers and Traders Trust Company agrees to cancel the NTASC S4B Bonds and to provide written and electronic notice of such cancellation to NTASC and the New York Counties Tobacco Trust V, as the issuer of the NYCTT V Bonds. Promptly following such cancellation of the NTASC S4B Bonds, Manufacturers and Traders Trust Company, as trustee for NTASC's Tobacco Settlement Asset- Backed Bonds, Series 2005 (the "Series 2005 Bonds"), shall cancel Series 2005 Bond No. RS4B-1 that had formerly secured the NTASC S4B Bonds and provide NTASC with written and electronic notice of such cancellation of Series 2005 Bond No. RS4B Execution of Consent and Waiver. Simultaneously with the execution of this Agreement and to facilitate the issuance by NTASC of the Series 2014 Bonds to finance, among other purposes, the payment of the Purchase Price of the NTASC S4B Bonds, the Funds as sole bondholders of the NYCTT V Bonds (including all of the NTASC S4B Bonds), agree to execute and deliver to NTASC and Manufacturers and Traders Trust Company, as trustee for the NYCTT V Bonds, the consent and waiver attached hereto as Exhibit A (the "Consent and Waiver"). The effectiveness of such Consent and Waiver is conditional on receipt by the Funds of the Purchase Price. Except as otherwise agreed to by the parties to this Agreement, unless the Funds shall have received the payment for the Purchase Price contemplated by Section 1 of this As of June 1, 2014, the accreted value of the NTASC S4B Bonds was $12,651,150. For the avoidance of doubt, the accreted value of the NTASC S4B Bonds on the Closing Date will include interest at 7.85% from the most recent compounding date to, but not including, the Closing Date. 1

2 Agreement by September 30, 2014, this Agreement shall terminate. This Agreement may not be revoked by the Funds before September 30, 2014 unless NTASC informs the Funds in writing and electronically prior to such date that it will not pay the purchase price. 3. Trustee Acknowledgement of Consent and Waiver. Manufacturers and Traders Trust Company, as trustee for the NYCTT V Bonds, the Series 2005 Bonds and the Series 2014 Bonds, hereby acknowledges receipt of an executed Consent and Waiver from the Funds as the sole bondholders of the NYCTT V Bonds (including the NTASC S4B Bonds) and agrees to follow the directions contained therein. In connection with the performance of the actions and duties required of Manufacturers and Traders Trust Company, as trustee for the NYCTT V Bonds, the Series 2005 Bonds and the Series 2014 Bonds pursuant to this Agreement and the Consent and Waiver, NTASC and the Funds do each hereby release and forever discharge Manufacturers and Traders Trust Company and its affiliates, officers, directors, agents and employees from any and all fees, claims, rights, covenants, controversies, promises, demands, damages, judgments, losses, actions, causes of action, suits, encumbrances, costs, expenses (including reasonable attorneys' fees) whatsoever, and all liabilities of every kind or character whatsoever, known or unknown, in contract or tort, in law, or equity (including, without limitation, such claims as mistake, duress, breach of fiduciary duty, fraud, conversion and negligence), arising from such actions and duties undertaken on the part of Manufacturers and Traders Trust Company in connection with Manufacturers and Traders Trust Company performing such actions consistent with the directions contained in the Consent and Waiver provided, however, that any such actions and duties shall be performed in the absence of negligence or bad faith. 4. Mutual Release of NTASC and the Funds. In connection with the actions required by this Agreement and the Consent and Waiver, NTASC and the Funds do each hereby release and forever discharge each other and their respective affiliates, officers, directors administrators, successors, agents and assigns from any and all fees, claims, rights, covenants, contracts, controversies, agreements, promises, demands, damages, judgments, losses, actions, causes of action, suits, encumbrances, costs, expenses (including reasonable attorneys' fees) whatsoever, and all liabilities of every kind or character known or unknown, arising from the matters contemplated in this Agreement and the Consent and Waiver in contract or tort, in law, or equity (including, without limitation, such claims as mistake, duress, breach of fiduciary duty, fraud, conversion and negligence), by or against or among themselves and their respective successors and assigns ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter or cause from the issuance of the NYCTT V Bonds to the date hereof and any future date where performance of the matters contemplated by this agreement shall occur; provided that nothing herein shall constitute a release with respect to any misrepresentation or obligation under this Agreement. NTASC and the Funds do each grant this release on their respective own behalf and on behalf of each of its successors and assigns, intending that all of such persons and entities be legally bound by this Agreement. 5. Representations of NTASC. NTASC represents and warrants to, and agrees with the Funds, that as of the date of hereof and as of the Closing Date, as if made at and as of the Closing Date, the following shall be true, complete and correct in all material respects: 2

3 (a) NTASC is duly organized and existing as a local development corporation organized by the County of Niagara, New York (the "County") under the laws of the State of New York (the "State") with the powers and authority given to the Corporation as set forth in the Not-For-Profit Corporation Law of the State; (b) NTASC has the full legal right, power and authority to enter into this Agreement and this Agreement constitutes the valid and binding obligation of the NTASC, enforceable against NTASC, and each of its affiliates, officers, directors, partners, members (of limited liabilities entities), managers (of limited liability entities), successors, agents, assigns, employees and representatives, in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws affecting the rights of creditors generally, and by principles of equity, including those related to equitable subordination, if equitable remedies are sought or if equitable defenses are raised; (c) No further authorization, consent or approval of any federal, State, County or other governmental commission, board, regulatory body or instrumentality is required by NTASC for the execution and delivery of this Agreement or in connection with the performance of any of the actions of NTASC described in this Agreement; and (d) The execution and delivery of this Agreement by NTASC, and the fulfillment of the terms and conditions of, and the carrying out of the transactions contemplated by, this Agreement, do not and will not conflict with, or constitute on the part of NTASC a breach of or a default under, any existing law (including, without limitation, the Constitution of the State), any court or administrative regulation, decree or order or any agreement, indenture, mortgage, lease or other instrument to which NTASC is subject or by which it is bound and which breach or default would materially adversely affect the validity or binding effect of this Agreement or the tax-exemption of the Series 2005 Bonds or the NTASC S4B Bonds. 6. Representations of the Funds. Each of the Funds represents and warrants to, and agrees with, NTASC, that as of the date of hereof and as of the Closing Date, as if made at and as of the Closing Date, the following shall be true, complete and correct in all material respects: Agreement; (a) Such Fund has the power to undertake the matters described in this (b) Such Fund owns a principal amount of NYCTT V Bonds which, together with the principal amount of NYCTT V Bonds owned by the other Funds, constitutes all of the NYCTT V Bonds, including the NTASC S4B Bonds; (c) Such Fund has the full legal right, power and authority to enter into this Agreement, and this Agreement and the Consent and Waiver constitute valid and binding obligations of such Fund, enforceable against such Fund in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws affecting the rights of creditors generally, and by principles of equity, including those related to equitable subordination, if equitable remedies are sought or if equitable defenses are raised; 3

4 (d) No further authorization, consent or approval is required by such Fund for the execution and delivery of this Agreement and the Consent and Waiver or in connection with the performance of any of the actions of such Fund described in this Agreement or the Consent and Waiver; (e) The execution and delivery of this Agreement and the Consent and Waiver by such Fund, and the fulfillment of the terms and conditions of, and the carrying out of the transactions contemplated by, this Agreement and the Consent and Waiver, do not and will not conflict with, or constitute on the part of such Fund a breach of or a default under, any existing law, any court or administrative regulation, decree or order or any agreement, indenture, mortgage, lease or other instrument to which such Fund is subject or by which it is bound and which breach or default would materially adversely affect the validity or binding effect of this Agreement; and Such Fund agrees that prior to the earlier of the date of issuance of the Series 2014 Bonds or September 30, 2014, (or such earlier date in the event NTASC informs the Funds in writing and electronically that it will not pay the Purchase Price), it will not sell, assign or in any way transfer ownership of any of the NYCTT V Bonds, including any of the NTASC S4B Bonds; provided that nothing herein shall preclude such Fund from transferring ownership of such bonds to any transferee that executes and delivers to NTASC and to Manufacturers and Traders Trust Company, as the Trustee for the Series 2005 Bonds and the Trustee for the NYCTT V Bonds, a Consent and Waiver substantially in the form of the Consent and Waiver attached hereto that is irrevocable prior to September 30, Parties Bound. NTASC and each Fund hereby agree to be bound by the release provision of Section 4 of this Agreement and that any person or entity that succeeds to the rights and responsibilities of NTASC or any such Fund shall also be bound. This Agreement is made for the benefit of the NTASC and the Funds and all who succeed to their rights and responsibilities, such as their successors and assigns. 8. Notices. Any notice or other communication to be given to NTASC under this Agreement shall be given by delivering the same in writing to NTASC, 59 Park Avenue, Lockport, New York to the attention of the President of NTASC, and any notice or other communication to be given to the Funds pursuant to this Agreement shall be given by delivering the same in writing to OppenheimerFunds, 350 Linden Oaks, Rochester, New York 14625, Attention: Richard Stein, Senior Vice President. 9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 10. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one of the same instrument. 4

5 ds /1.4.q4. 114, TOBACCO ASSET SECURITIZATION CORPORATION OPPENIIIIIS ilitgik Oiinnqi'muNict,pas OPPENITEIMERROCITESTERANT-EREE nes NEW YORK MUNICIPALIUND: OPPENRE h i If ROCIIESTEB Mail YIELD / By: AI /ALL ' I *a Name: aid Stein Title: Vice President Acknowledged and Agreed to on the date St written above: MANUFACTURERS AND TRADERS TRUST COMPANY, as trustee for the NYCTT V Bonds BY: Name: Title: RUSSELL T. WHIT: EY ASSISTANT A;SSIS,Ti'NTVICE F5RuinpT. MANUFACTURERS AND TRADERS TRUST:COMPANY, as trustee for the Series 2014 Bonds By: Name: Title: RUSSELL, T. WHITLEY ASSEVLIT vlompr:?..7.1nenit 4013-Fs.cruggits..-ANp TRADERS TRUST. COMPANY, as trustee for the Series.2005 Bonds By: Name: Title: I-1168E11T. WHITLEY 3ii3iSTANT PIRESIDELIT 5

6 Exhibit A CONSENT AND WAIVER The mutual funds listed below (the "Funds") as the Bondholders of all of the outstanding New York Counties Tobacco Trust V Tobacco Settlement Pass-Through Bonds (the "NYCTT V Bonds"), including, in particular, all of the Series 2005 S4B (Subordinate Turbo CABS) (the "NTASC S4B Bonds"), do hereby consent to the issuance and sale by Niagara Tobacco Asset Securitization Corporation ("NTASC") of its Tobacco Settlement Asset-Backed Bonds, Series 2014 (the "Series 2014 Bonds") and the use of the proceeds thereof to (i) currently refund NTASC's Tobacco Settlement Asset-Backed Bonds, Series 2000 (the "Series 2000 Bonds"), including the funding of a Debt Service Reserve Fund in an amount equal to maximum annual debt service on the Series 2014 Bonds and the payment of costs of issuance of the Series 2014 Bonds, (ii) purchase from the Funds, for cancellation, all of the NTASC S4B Bonds at the Purchase Price specified in the Purchase Agreement, Consent and Release dated as of July 31, 2014, between NTASC and the Funds (the "Agreement"), and (iii) provide for a payment of an amount not to exceed $2,000,000 to the holder of the Residual Certificate notwithstanding any provision to the contrary that may be contained in the Series 2005 Supplemental Bond Indenture between NTASC and Manufacturers and Traders Trust Company, as trustee thereunder (the "2005 Supplemental Indenture") pursuant to which NTASC has issued its Tobacco Settlement Asset-Backed Bonds, Series 2005 (the "Series 2005 Bonds"), a portion of which Series 2005 Bonds secure a like amount of NTASC S4B Bonds. Furthermore, as the Bondholders of all of the NYCTT V Bonds (including all of the NTASC S4B Bonds), the Funds hereby consent to and waive (to the extent such Bondholders have the authority to waive such provisions) the provisions of the 2005 Supplemental Indenture to the extent inconsistent with the issuance and sale of the Series 2014 Bonds only and NTASC's purchase of the NTASC S4B Bonds pursuant to the Agreement. Each of the Funds also recognizes and acknowledges that the refunding of the Series 2000 Bonds and the purchase of the NTASC S4B Bonds pursuant to the Agreement (collectively, the "Transaction") will have the effect of altering the schedule of future turbo payments on the Series 2005 Bonds and the related NYCTT V Bonds attributable to NTASC from the payment schedule that existed had the Transaction not occurred but do not otherwise alter the rights of bondholders thereunder. Capitalized terms used herein and not otherwise defined shall have the meanings specified therefor in the 2005 Supplemental Indenture. Manufacturers and Traders Trust Company, as the Trustee for the Series 2005 Bonds and the Trustee for the NYCTT V Bonds is hereby directed by the Funds to take all trustee actions consistent with the consent and waiver herein provided as may be necessary or desirable to effectuate the Transaction contemplated by the Agreement. This Consent and Waiver shall be effective upon execution by the Funds but is conditioned upon receipt of the Purchase Price set forth in the Agreement, and failure by NTASC to pay such Purchase Price on the date of issuance of the Series 2014 Bonds shall automatically render this Consent and Waiver to be null and void ab initio. This Consent and Waiver may not be revoked by the Funds before September 30, 2014 unless NTASC informs the Funds in writing and electronically prior to such date that it will not pay the purchase price. Upon payment of the Purchase Price, this Consent and Waiver shall become permanently irrevocable by the Funds. 1

7 OPPENHEIMER ROCHESTER FUND MUNICIPALS OPPENHEIMER ROCHESTER AMT-FREE NEW YORK MUNICIPAL FUND OPPENHEIMER ROCHESTER HIGH YIELD MUNICIPAL FUND By: Name: Richard Stein Title: Vice President Dated as of July 31,