EXHIBIT 10.14
CUSTODIAL AGREEMENT
This CUSTODIAL AGREEMENT (the "Agreement") is entered into as of
January 7, 2003, by and among OMI NOTE TRUST 2003-A, a Delaware business trust
(the "Issuer"), each person identified as an "Debtor" in a Joinder Supplement
executed pursuant hereto (together with the Issuer, the "Debtors"), CREDIT
SUISSE FIRST BOSTON, NEW YORK BRANCH, as agent under the Note Purchase Agreement
referred to below (together with its successors in such capacity, the "Note
Agent"), OAKWOOD ACCEPTANCE CORPORATION, LLC, individually ("OAC"), as Seller
(together with its successors in such capacity, the "Seller") and Subservicer
(together with its successors in such capacity, the "Subservicer"), OAKWOOD
SERVICING HOLDINGS CO., LLC ("OSHC"), as Servicer (together with its successors
in such capacity, the "Servicer"), JPMORGAN CHASE BANK, as the custodian
hereunder (together with its successors in such capacity, the "Custodian") and
as Indenture Trustee under the Indenture referred to below (together with its
successors in such capacity, the "Indenture Trustee") and each person identified
as a "Secured Party" in a Joinder Supplement executed pursuant hereto (together
with the Indenture Trustee, the "Secured Parties"). All capitalized terms used
herein without definition shall have the respective meanings assigned thereto in
the Sale and Servicing Agreement.
W I T N E S S E T H:
WHEREAS, OAC originates loans financing the purchase of manufactured
housing pursuant to (a) installment sales contracts secured by first priority
liens on the manufactured housing sold or (b) promissory notes secured by
mortgages or deeds of trust on such manufactured housing and the real property
on which such manufactured housing is or will be located, and indirectly assigns
such loans, contracts, notes, mortgages, deeds of trust and collateral to the
Issuer; and
WHEREAS, pursuant to the Class A Note Purchase Agreement, dated as of
the date hereof (as amended, supplemented or otherwise modified from time to
time, the "Note Purchase Agreement"), among the Purchasers parties thereto, the
Note Agent, OAC, as Seller and as Subservicer, OSHC, as Servicer, Ginkgo
Corporation, as Transferor (together with its successors in such capacity, the
"Transferor"), Oak Leaf Holdings, LLC, as Depositor (together with its
successors in such capacity, the "Depositor"), and the Issuer, Purchasers have
agreed to purchase interests in the Class A Notes from the Issuer to provide
financing for the purchase by the Issuer of retail installment sale contracts
for certain manufactured housing and of certain mortgage loans;
WHEREAS, pursuant to the Sale and Servicing Agreement, dated as of the
date hereof (the "Sale and Servicing Agreement"), among the Seller, the
Servicer, the Subservicer, the Depositor, the Transferor, JPMorgan Chase Bank,
as Backup Servicer, Indenture Trustee and
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Custodian, the Seller has transferred to the Transferor, the Transferor has
transferred to the Depositor, and the Depositor has transferred to the Issuer,
such retail installment sale contracts and mortgage loans;
WHEREAS, pursuant to the Indenture, dated as of the date hereof (the
"Indenture"), between the Issuer and the Indenture Trustee, the Issuer has
granted to the Indenture Trustee a security interest in, among other things, all
of the Receivables and the related Files (as defined therein) for the purpose of
securing the due and punctual payment of all amounts due from the Issuer under
the Notes issued pursuant thereto;
WHEREAS, pursuant to the Sale and Servicing Agreement, the Seller has
agreed to deliver certain Files to the Custodian;
WHEREAS, the Indenture Trustee desires that the Custodian hold certain
Files and other documents related thereto as Custodian for, and bailee of, the
Indenture Trustee;
WHEREAS, each other Secured Party executing any Joinder Supplement
desires that the Custodian hold certain Files and other documents related
thereto as Custodian for, and bailee of, such Secured Party;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS. For the purposes of this
Agreement, in addition to the definitions set forth above, the following terms
shall have the following meanings:
"Bailee Letter" shall mean a letter substantially in the form
of Exhibit B attached hereto, accompanying a shipment of Contract Files or
Mortgage Loan Files by the Custodian to another Person.
"Contract" shall mean each retail installment sales contract
and security agreement or installment loan agreement and security agreement that
has been executed by an obligor and pursuant to which such obligor (i) purchased
the manufactured home described therein, (ii) agreed to pay the deferred
purchase price or amount borrowed, together with finance charges, as therein
provided in connection with such purchase or loan, (iii) granted a security
interest in such manufactured home to the originator of such contract and (iv)
undertook to perform certain other obligations as specified in such contract or
loan agreement.
"Delivery Letter" shall mean a letter substantially in the
form of Exhibit C hereto.
"Documents" means all documents contained in a File.
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"Files" shall mean all files delivered by the Seller to the
Custodian pursuant to this Agreement.
"Joinder Supplement" shall mean an instrument substantially in
the form of Exhibit A hereto.
"Mortgage Loan" shall mean each mortgage loan secured by a
first lien on a one- to four-family residential real property (which may be the
real estate to which a manufactured home is deemed by the Seller to have become
permanently affixed).
"Security Document" shall mean, with respect to the Issuer and
the Indenture Trustee, the Indenture, and with respect to any other Debtor or
Secured Party, the instrument identified as such in the related Joinder
Supplement.
SECTION 2. POSSESSION OF FILES BY THE CUSTODIAN.
(a) GRANT OF SECURITY INTEREST. Each Debtor hereby
confirms that it has granted to the related Secured Party, an ownership or a
security interest in, among other property, all Contracts and Mortgage Loans in
which it has an interest as to which Files are now or hereafter held by the
Custodian under the provisions of this Agreement, all related Documents, and
certain proceeds thereof as security for the obligations owing by such Debtor to
the related Secured Party under the related Security Document. The Custodian
shall hold the Files delivered by or on behalf of any Debtor and all documents
contained therein (i) in trust for, and as agent and bailee of, the related
Secured Party, (ii) for purposes of conveying or perfecting such Secured Party's
ownership or security interest therein and, in the case of the transfers
pursuant to the Sale and Servicing Agreement, conveying or perfecting the
ownership interests or security interests of the Transferor and the Depositor,
(iii) to restrict the possession thereof by any other Person except as permitted
in accordance with the terms of this Agreement and the related Security
Document, and (iv) subject to and in accordance with the terms and provisions of
this Agreement.
(b) CUSTODY.
(i) All Files relating to any Receivable held by
the Custodian under this Agreement shall be placed by the
Seller or Servicer in a separate file for each Receivable,
properly fastened or secured, and delivered to the Custodian
with a document identifying the obligor to which such File
relates. Additional Documents may be delivered to the
Custodian from time to time in connection with a File already
in its possession.
(ii) All Files shall be kept in an office of the
Custodian located in the State of Texas. All Files shall be
kept at all times when in the Custodian's possession in a
specific secured room, or in a specific area of a secured room
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which is separate and clearly identifiable from the rest of
such room, of the Custodian as such room or area is designated
by the Custodian (the "Title Room"), and shall only be removed
therefrom in accordance with the terms of Section 4 hereof.
All Files held by the Custodian will be maintained in a fire
resistant room similar to such fire resistant rooms used by
other Custodians, under its exclusive custody and control, and
segregated from all similar documents held by the Custodian
which are not related to the Files held by the Custodian under
this Agreement. The Custodian shall undertake such internal
control measures and other procedures as shall be reasonably
requested by any Secured Party or the Note Agent from time to
time with respect to the Title Room and the custody of the
Files.
(c) INVENTORY OF FILES. At the time of shipment by the
Seller or Servicer to the Custodian of any Files or Documents related to a
Contract or Mortgage Loan, the Seller, the Servicer or the related Debtor shall
also ship a list (the "File List") of (i) the related Contract and/or Mortgage
Loan file numbers, (ii) the original principal balance of such Contract or
Mortgage Loan, and (iii) the name of the related obligor. The Custodian shall
check the documents in the Files delivered pursuant to this Agreement and
certify to the Seller, the Servicer, the related Debtor, and the related Secured
Party (with a copy, in the case of the Indenture Trustee, to the Note Agent) in
writing within 48 hours after delivery of the Files and related File List, that
based on its examination of such Files, the information set forth on the related
File List respecting each such File is accurate and that all "Required
Documentation" (as defined in the Sale and Servicing Agreement or, with respect
to any Files of any Debtor other than the Issuer, as defined in the related
Joinder Supplement or Security Document), other than any flood insurance policy,
has been received with respect to the Contracts or Mortgage Loans listed on the
File List, and in so doing the Custodian may rely on the purported due execution
and genuineness of any signature thereon and on the Servicer's certification of
the definition of Required Documentation with respect to any particular File. If
within such 48-hour period the Custodian finds any document constituting a part
of a File not to have been executed or received or to be unrelated to the
Receivables identified in said File List or, if in the course of its review, the
Custodian determines that such File is otherwise defective in any material
respect, the Custodian shall promptly upon the conclusion of its review notify
the related Secured Party (with a copy, in the case of the Indenture Trustee, to
the Note Agent), the related Obligor and the Seller.
(d) POSSESSION OF FILES. Without any limitation of
Sections 2(a) or (b) hereof, following the Custodian's receipt of each File the
Custodian shall retain possession and custody thereof, subject to the terms of
this Agreement, for the exclusive benefit of, in trust for, and as bailee and
agent of, the related Secured Party and for purposes (i) of perfecting the
related Secured Party's ownership or security interest therein, to the extent
available under applicable law, and (ii) of restricting the possession thereof
by any Person except as permitted in accordance with the terms of this
Agreement, until and unless such security interest in any
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Contract or Mortgage Loan is released pursuant to the terms of Section 4 hereof.
Upon such receipt the Custodian shall also make appropriate notations in the
Custodian's books and records reflecting that the File is owned or has been
pledged to the related Secured Party and that the related Secured Party has
acquired and holds an ownership or a security interest therein. Notwithstanding
any other provisions of this Agreement, the Custodian shall not at any time
exercise or seek to enforce any claim, right or remedy, including any statutory
or common law rights of set-off, that it might otherwise have against all or any
Documents or the proceeds thereof.
SECTION 3. RELEASE OF FILES BY THE CUSTODIAN.
(a) TO A SECURED PARTY. The Custodian is hereby
authorized and directed, at any time and from time to time, to deliver to a
Secured Party or to such Secured Party's designee all or any of the Files held
by the Custodian for the benefit of such Secured Party, upon receipt by the
Custodian of a duly executed and completed Delivery Letter. No Secured Party
shall furnish a Delivery Letter to the Custodian except upon the occurrence and
during the continuance of an event that under the related Security Document
entitles the Secured Party to dispose of the related Receivables. Within two (2)
Business Days following the Custodian's receipt of a Delivery Letter for the
Files that are being delivered, the Custodian shall send the applicable Files to
such Secured Party or its designee. The Seller shall make such alterations and
endorsements to the Files and Documents therein and execute such documents and
instruments, at the Seller's expense, to the extent and as may be determined by
such Secured Party to be necessary to reflect the delivery of the Files and
Documents therein to such Secured Party or its designee. All Files or other
documents to be delivered by the Custodian to a Secured Party or its designee
shall be delivered at its direction in person, by reputable overnight courier,
or deposited with the United States Postal Service, by registered mail, postage
prepaid, addressed to the addressee specified in the Delivery Letter or by other
means agreed upon between such Secured Party and the Custodian.
(b) TO A DEBTOR OR THE SERVICER FOR FORECLOSURE OR
SERVICING. From time to time, and as appropriate for, and only for, the
foreclosure or servicing of any of the Contracts and Mortgage Loans, the
Custodian is hereby authorized to release to the Servicer from the Title Room
and its custody hereunder Files and Documents specified in a Servicing Request
for Release delivered pursuant to the following sentence. All Files or other
documents to be delivered by the Custodian to the Servicer, shall be shipped by
the Custodian to the Servicer within two (2) Business Days after receipt by the
Custodian from the Servicer of a Servicing Request for Release in the form of
Exhibit D hereto (a "Servicing Request for Release"). Such shipment shall be
made at the Servicer's direction in person, by reputable overnight courier, or
deposited with the United States Postal Service, by registered mail, postage
prepaid, addressed to the addressee specified in the request for release or by
other means agreed upon between the Servicer and the Custodian.
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(c) TO A POTENTIAL TRANSFEREE.
(i) The Custodian is hereby authorized and
directed from time to time, upon written request duly executed
by the Servicer and consented to by the related Secured Party
(a "Request for Conditional Release"), to release and ship any
of the Files or the Documents which are held for the benefit
of such Secured Party and which are specified in such Request
for Conditional Release to any Person designated in such
Request for Conditional Release (a "Potential Transferee").
(ii) Within two Business Days following the
Custodian's receipt of a Request for Conditional Release, the
Custodian shall deliver the Files or Documents specified in
such Request for Conditional Release to the Potential
Transferee (or its designee) under a Bailee Letter, a copy of
which shall be delivered to the related Secured Party. All
Files or Documents to be delivered by the Custodian to any
Potential Transferee or its designee shall be delivered at the
related Debtor's direction and expense in person, by reputable
overnight courier, or deposited with the United States Postal
Service, by registered mail, postage prepaid, addressed to the
Potential Transferee or its designee or by other means agreed
upon between the related Debtor and Secured Party.
(d) PAYOFF. From time to time the Custodian shall release
Files with respect to Contracts and Mortgage Loans from its custody and the
bailment established hereunder to the Servicer upon payment by the obligors on
such Contracts and Mortgage Loans upon receipt of from the Servicer of a
Servicing Request for Release with respect thereto, specifying the Contracts or
Mortgage Loans as to which Files are to be delivered. The Custodian shall ship
such Files to the Servicer within two (2) Business Days of its receipt of the
related Servicing Request for Release, such shipment to be made in the manner
agreed upon by the Servicer and the Custodian.
(e) TERMINATION. If Custodian is furnished with written
notice and satisfactory evidence from the related Secured Party in the form of
Exhibit E hereto that all of the obligations of a Debtor have been satisfied,
Custodian shall release to such Debtor the Files relating to such Debtor and
Secured Party.
SECTION 4. REGARDING THE CUSTODIAN.
(a) The Custodian undertakes to perform only such duties
as are expressly set forth herein.
(b) The Custodian may rely and shall be protected in
acting or refraining from acting upon any written notice, instruction or request
furnished to it hereunder and believed by it to be genuine and to have been
signed or presented by the proper party or parties. The Custodian
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shall be under no duty to inquire into or investigate the validity, accuracy or
content of any such document. The Custodian shall have no duty to verify the
authenticity, genuineness or conformity to the requirements of this Agreement or
any Security Document of any Contracts or related documents delivered to it
hereunder, or to determine whether the materials included in any File conform to
the requirements hereof or of any Security Document.
(c) The Custodian shall not be liable for any action
taken or omitted by it in good faith unless a court of competent jurisdiction
determines that the Custodian's willful misconduct was the primary cause of any
loss to the Seller, the Servicer, a Debtor or a Secured Party. In the
administration of the custodial account hereunder, the Custodian may execute any
of its powers and perform its duties hereunder directly or through agents or
attorneys and may consult with counsel, accountants and other skilled persons to
be selected and retained by it. The Custodian shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the advice or
opinion of any such counsel, accountants or other skilled persons.
(d) The Servicer hereby agrees to (i) pay the Custodian
upon execution of this Agreement reasonable compensation for the services to be
rendered hereunder, as described in Schedule II attached hereto, and (ii) pay or
reimburse the Custodian upon request for all expenses, disbursements and
advances, including reasonable attorney's fees, incurred or made by it in
connection with the preparation, execution, performance, delivery, modification
and termination of this Agreement.
(e) The Servicer agrees to indemnify and hold the
Custodian and its directors, officers, agents and employees (collectively the
"Indemnitees") harmless from and against any and all claims, liabilities,
losses, damages, fines, penalties, and expenses, including out-of-pocket and
incidental expenses and legal fees and expenses ("Losses") that may be imposed
on, incurred by, or asserted against, the Indemnitees or any of them for
following any instructions or other directions upon which the Custodian is
authorized to rely pursuant to the terms of this Agreement.
(f) In addition to and not in limitation of paragraph (e)
immediately above, the Servicer also agrees to indemnify and hold the
Indemnitees and each of them harmless from and against any and all Losses that
may be imposed on, incurred by, or asserted against, the Indemnitees or any of
them in connection with or arising out of the Custodian's performance under this
Agreement, provided the Indemnitees have not acted in bad faith or with gross
negligence or engaged in willful misconduct.
(g) The duties and responsibilities of the Custodian
hereunder shall be determined solely by the express provisions of this Custodial
Agreement, and no other or further duties or responsibilities shall be implied.
The Custodian shall not have any liability under, nor duty to inquire into the
terms and provisions of, any agreement or instructions, other than as
specifically required by this Agreement.
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(h) The Custodian shall not incur any liability for
following the instructions herein contained or expressly provided for, or
written instructions given by the parties hereto.
(i) In the event that the Custodial shall be uncertain as
to its duties or rights hereunder or shall receive instructions, claims or
demands from any party hereto which, in its opinion, conflict with any of the
provisions of this Agreement, it shall so advise the other parties hereto and
shall be entitled to refrain from taking any action and its sole obligation
shall be to keep safely all property held in custody until it shall be directed
otherwise in writing by all of the other parties hereto or by a final order
judgment of a court of competent jurisdiction.
(j) Any corporation or association into which the
Custodian in its individual capacity may be merged or converted or with which it
may be consolidated, or any corporation or association resulting from any
merger, conversion or consolidation to which the Custodian in its individual
capacity shall be a party, or any corporation or association to which all or
substantially all of the corporate trust business of the Custodian in its
individual capacity may be sold or otherwise transferred, shall be the Custodian
under this Agreement without further act other than the execution by the
successor of an assignment and assumption of this Agreement where the same is
not effected by operation of law.
(k) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Custodian be liable for special, indirect
or consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Custodian has been advised of the
likelihood of such loss or damage and regardless of the form of action.
SECTION 5. RIGHT OF INSPECTION BY SECURED PARTY. Upon
reasonable written notice to the Custodian, a Secured Party or its duly
authorized representatives (which, in the case of the Indenture Trustee, shall
include the Note Agent) may at any time, during ordinary business hours, inspect
and examine the related Files (and the contents thereof) in the possession and
custody of the Custodian at the Title Room and any such other place or places,
if any, where such Files are deposited.
SECTION 6. TERMINATION OF AGREEMENT. This Agreement
shall become effective on and as of the date hereof and shall terminate upon the
Custodian's receipt of written notice of termination signed by the Seller, the
Servicer, each Debtor, and each Secured Party, and in any event only following
delivery of all Files then held by the Custodian to the related Secured Party or
its designee or, if authorized in writing by the related Secured Party, to the
Servicer or the related Debtor. Any Secured Party may terminate this Agreement
solely with respect to such Secured Party and the related Debtor by delivering
written notice to such effect to the Custodian; upon any such termination, the
Custodian shall deliver the related Files to such Secured Party or its designee
or, if authorized in writing by the related Secured Party, to the Servicer or
the related Debtor.
SECTION 7. RESIGNATION AND REMOVAL OF THE CUSTODIAN.
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(a) APPOINTMENT. Each of each Debtor, the Seller, the
Servicer, each Secured Party and the Note Agent hereby appoints and designates
JPMorgan Chase Bank to serve as Custodian hereunder until its resignation or
removal in accordance with the terms of this Section 7; it being understood and
agreed hereunder that, with respect to any particular File or Document, the
Custodian shall be the agent solely of the related Secured Party.
(b) RESIGNATION. The Custodian shall have the right, with
or without cause, to resign as Custodian under this Agreement upon 60 days'
prior written notice to the Note Agent, each Secured Party, the Seller, the
Servicer and each Debtor.
(c) REMOVAL. With or without cause, the Servicer, with
the written consent of t he Note Agent and each Secured Party, may remove and
discharge the Custodian from the performance of its duties under this Agreement,
by five (5) days, written notice to the Custodian.
(d) APPOINTMENT OF SUCCESSOR CUSTODIAN; TRANSFER OF FILES
AS TO CONTRACTS AND MORTGAGE LOANS. From and after the date of delivery of
notice of resignation or removal of the Custodian, the Servicer shall have
thirty (30) days in which to appoint and designate a successor acceptable to the
Secured Parties and the Note Agent, and the Custodian shall deliver all Files
and proceeds thereof held by it to the Person so designated within five (5) days
following delivery to the Custodian of written notice from the Servicer setting
forth the name and address of the successor Custodian. Any successor Custodian
shall enter into a Custodial Agreement with the Seller, the Servicer, the
Debtors, the Note Agent and the Secured Parties having terms, conditions and
obligations substantially similar to the terms, conditions and obligations set
forth in this Agreement. If the Servicer fails to designate a successor
Custodian acceptable to the Note Agent and the Secured Parties within such
30-day period, then the Custodian may apply to a court with competent
jurisdiction to appoint a successor. The Custodian shall continue to act as
Custodian under this Agreement until it delivers the Files and proceeds thereof
held by it to a duly appointed successor Custodian. Neither the Note Agent nor
any Secured Party shall be responsible for the fees of any successor Custodian,
all such fees to be paid by the Servicer.
SECTION 8. FIDELITY INSURANCE. Custodian shall, at its
own expense, maintain at all times during the existence of this Agreement,
Bankers Blanket Bond Insurance (Form #24 or the equivalent). All such insurance
shall be with standard coverage and subject to deductibles as is customary for
insurance typically maintained by banks which act as custodian in similar
transactions. A certificate of an officer of the Custodian as to each such
policy shall be furnished upon written request.
SECTION 9. LOST DOCUMENTS. The Custodian shall not have
any liability to any Debtor, the Seller, any Secured Party or the Servicer on
account of any Documents delivered or released pursuant to this Agreement which
are lost in the course of such delivery or release so long as such Documents
were at the time of such loss in the possession of a courier service
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selected by the Servicer. In no event shall any Secured Party or the Note Agent
have any liability to any Debtor, the Custodian, or the Servicer on account of
such lost Documents.
SECTION 10. NOTICES. Any notice, request, demand or
consent, required or permitted by this Agreement shall, except as otherwise
provided in this Agreement, be in writing and shall be effective and deemed
delivered only when received by the Person to which it is sent. Any such notice,
demand or consent shall be delivered in person or transmitted by a recognized
private courier service or sent by telecopy (with a hard copy to be mailed first
class the same day) or deposited with the United States Postal Service,
certified mail, postage prepaid, return receipt requested, addressed as follows,
unless such address is changed by written notice hereunder:
(A) If to the Note Agent: Credit Suisse First Boston
New York Branch
11 Madison Avenue
New York, NY 10010
Attention: Asset Finance Dept.
Telecopier: 212-325-6677
(B) If to the Issuer: OMI Note Trust 2003-A
c/o Wilmington Trust Company
Rodney Square North
1100 N. Market Street
Wilmington, DE 19890
Attention: Corporate Trust
Administration//
OMI Note Trust 2003-A
Telecopier No.: (302) 651-8882
(C) If to the Seller
or the Subservicer: Oakwood Acceptance Corporation, LLC
7800 McCloud Road
Greensboro, NC 27409-9634
Attention: Treasurer
Telecopier No.: (336) 664-3224
and
P.O. Box 27081
Greensboro, NC 27425-7081
(D) If to the Servicer: Oakwood Servicing Holdings Co., LLC
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7800 McCloud Road
Greensboro, NC 27409-9634
Attention: Treasurer
Telecopier No.: (336) 664-3224
and
P.O. Box 27081
Greensboro, NC 27425-7081
(E) If to the Indenture
Trustee: JPMorgan Chase Bank
4 New York Plaza, Floor 6
New York, NY 10004
Attn: Institutional Trust Services
Tel: 212-____________
Telecopier: 212-623-5932
(F) If to the Custodian: JPMorgan Chase Bank
1111 Fannin Street, 12th floor
Houston, TX 77002
Attn: Custody Manager
[Tel: 713-427-6425]
Telecopier: 713-427-6420
The address for any other Debtor or Secured Party shall be set forth in the
related Joinder Supplement.
SECTION 11. NO ASSIGNMENT OR DELEGATION BY THE
CUSTODIAN. The Custodian shall not assign its rights, benefits or privileges
hereunder nor delegate or appoint any other Person to perform or carry out its
duties, responsibilities or obligations under this Agreement except in its
ordinary course of business.
SECTION 12. CONTROLLING LAW. This Agreement and all
questions relating to validity, interpretation, performance and enforcement,
shall be governed by and construed, interpreted and enforced in accordance with
the laws of the State of New York.
SECTION 13. AGREEMENT FOR THE EXCLUSIVE BENEFIT OF
PARTIES. This Agreement is for the exclusive benefit of the parties hereto and
their respective successors and permitted assigns, and shall not be deemed to
create or confer any legal or equitable right, remedy or claim upon any other
Person whatsoever.
SECTION 14. ENTIRE AGREEMENT. This Agreement contains
the entire agreement
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among the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof, including any prior custodial
agreements. The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing signed by all the parties hereto.
SECTION 15. EXHIBITS. All Exhibits referred to herein or
attached hereto are hereby incorporated by reference into, and made a part of,
this Agreement.
SECTION 16. INDULGENCES, NOT WAIVERS. Neither the
failure nor any delay on the part of a party hereto to exercise any right,
remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the parties
asserted to have granted such waiver.
SECTION 17. TITLES NOT TO AFFECT INTERPRETATION. The
titles of sections and subsections contained in this Agreement are for
convenience only, and they neither form a part of this Agreement nor are they to
be used in the construction or interpretation hereof.
SECTION 18. PROVISIONS SEPARABLE. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other provision or provisions may be invalid or
unenforceable in whole or in part.
SECTION 19. COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
constitute one and the same document.
SECTION 20. IDENTIFICATION. This Agreement is the
Custodial Agreement referred to in the Note Purchase Agreement, the Indenture
and the Sale and Servicing Agreement.
SECTION 21. CONSENT TO JURISDICTION; OTHER WAIVERS. (a)
IN THE EVENT THAT ANY ACTION, SUIT OR OTHER PROCEEDING IS BROUGHT AGAINST ANY
PARTY HERETO TO ENFORCE THE OBSERVANCE OR PERFORMANCE OF ANY OF THE PROVISIONS
OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE COLLECTION OF ANY AMOUNTS
OWING HEREUNDER, EACH PARTY HERETO HEREBY IRREVOCABLY (i) CONSENTS TO THE
EXERCISE OF JURISDICTION OVER
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SUCH PARTY AND ITS PROPERTY BY THE UNITED STATES DISTRICT COURT, SOUTHERN
DISTRICT OF NEW YORK, AND BY ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW
YORK, AND (ii) WAIVES ANY OBJECTION SUCH PARTY MIGHT NOW OR HEREAFTER HAVE OR
ASSERT TO THE VENUE OF ANY SUCH PROCEEDING IN ANY COURT DESCRIBED IN CLAUSE (i)
ABOVE OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM.
(b) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY RELATED DOCUMENT OR AGREEMENT.
(c) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO
IN PARAGRAPH (a) OF THIS SECTION 21 ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.
(d) EACH PARTY HERETO (i) CERTIFIES THAT NO
REPRESENTATIVE, AGENT NOR ATTORNEY OF THE INDENTURE TRUSTEE OR AGENT HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT INDENTURE TRUSTEE OR AGENT WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii)
ACKNOWLEDGES THAT EACH OF THE AGENT AND THE INDENTURE TRUSTEE HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS HEREIN.
SECTION 22. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein or in any related document to the
contrary, it is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Owner Trustee of OMI Note Trust 2003-A,
in the exercise of the powers and authority conferred and vested in it under the
related Trust Agreement, (b) each of the representations, undertakings and
agreements herein made on the part of the Issuer is made and intended not as a
personal representation, undertaking or agreement by Wilmington Trust Company
but is made and intended for the purpose for binding only the Issuer, and (c)
under no circumstances shall Wilmington Trust Company be personally liable for
the payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related documents.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first set forth above.
OMI NOTE TRUST 2003-A
By: Wilmington Trust Company, not individually, but
solely in its capacity as Owner Trustee
By: _________________________________________________
Name: __________________________________________
Title:__________________________________________
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Note Agent
By: _________________________________________________
Name: __________________________________________
Title:__________________________________________
By: _________________________________________________
Name: __________________________________________
Title:__________________________________________
JPMORGAN CHASE BANK, as Custodian and Indenture
Trustee
By: _________________________________________________
Name: __________________________________________
Title:__________________________________________
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OAKWOOD ACCEPTANCE CORPORATION, LLC
as Seller and Subservicer
By: _________________________________________________
Name: __________________________________________
Title:__________________________________________
OAKWOOD SERVICING HOLDINGS CO., LLC
as Servicer
By: _________________________________________________
Name: __________________________________________
Title:__________________________________________
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Exhibit A
FORM OF JOINDER SUPPLEMENT
A-1-
Exhibit B
BAILEE LETTER
[Custodian Letterhead]
__________, 20__
[NAME AND ADDRESS
OF INVESTOR OR
LENDER]
[NAME AND ADDRESS OF
ANY INVESTOR OR
LENDER'S CUSTODIAN]
Re: Purchase or Financing of Contracts and/or Mortgage Loans
We are forwarding the enclosed original Files for the
Contracts and/or Mortgage Loans (the "Contracts and Mortgage Loans") described
in the attached schedule along with other supporting documents and/or packages.
A security interest in the Contracts and Mortgage Loans and related documents
(collectively the "Documents") has been granted by __________ (the "Debtor") to
_______ (the "Secured Party"). We are acting as custodian (the "Custodian") for
the Secured Party. The Documents in your possession are to be held by you as a
bailee for the benefit of the Secured Party, subject to direction and control by
us and the Secured Party; and by your receipt of this letter you acknowledge the
aforementioned security interest in the Contracts and Mortgage Loans, the legend
affixed to the front page of each such related Document, and your duty to hold
such Documents as a bailee as provided herein.
Please acknowledge receipt of this letter and the named
documents, and your agreement to the terms hereof, by signing and returning the
enclosed copy to: JPMorgan Chase Bank, 4 New York Plaza, Floor 6, New York, NY
10004, Attn: Institutional Trust Services. Failure to accept this letter will,
however, in no event alter your status as bailee for the benefit of the
Custodian and the Secured Party or excuse your compliance with the terms hereof.
If you are unwilling to comply with the terms hereof, you are to immediately
return the Files as to the Contracts and Mortgage Loans to the Custodian via
return mail or overnight courier service.
Sincerely,
JPMorgan Chase Bank, as Custodian
B-1
By:_________________________________________
Name: ___________________________________
Title:___________________________________
Received and Agreed to:
[Name of Investor/Lender] [Name of Investor/Lender's Custodian]
By:_______________________________ By:_______________________________
Name: _________________________ Name: _________________________
Title:_________________________ Title:_________________________
B-2
Exhibit C
DELIVERY LETTER
____________, 20__
TO: JPMorgan Chase Bank
4 New York Plaza, Floor 6
New York, NY 10004
ATTN: Institutional Trust Services
Pursuant to the terms of the Custodial Agreement, dated as of
January 7, 2003, (the "Custodial Agreement"; defined terms used in this letter
shall have the meanings assigned to them in the Custodial Agreement), among
Oakwood Servicing Holdings Co., LLC, Oakwood Acceptance Corporation, LLC,
JPMorgan Chase Bank, as Custodian and as Indenture Trustee for OMI Note Trust
2003-A Asset-Backed Notes, Series 2003-A, Credit Suisse First Boston, New York
Branch, as Note Agent, OMI Note Trust 2003-A, and the other persons from time to
time parties thereto, the undersigned Secured Party hereby directs the Custodian
to deliver to such Secured Party or its designee at the address set forth below,
all Files for [all Contracts and Mortgage Loans] [all File(s) for the Contracts
and Mortgage Loans referred to in Exhibit A to this Delivery Letter], without
recourse or warranty.
The File(s) shall be delivered in person to, or deposited with
the United States Postal Service, by registered mail, postage prepaid, and
addressed to:
Name
Address/P.O. Box
City, State, Zip Code
Attention: _______________________________
Very truly yours,
______________________, as Secured Party
By:_____________________________
Its: ___________________________
C-1
Exhibit A
to
DELIVERY LETTER
- --------------------------------------------------------------------------------
Original Amount of
File Number Name of Obligor Date of Contract Contract
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
C-2
Exhibit D
SERVICING REQUEST FOR RELEASE OF DOCUMENTS
To: [NAME OF CUSTODIAN]
[ADDRESS OF CUSTODIAN]
Re: Custodial Agreement, dated as of January 7, 2003, (the
"Custodial Agreement"; defined terms used in this letter shall have
the meanings assigned to them in the Custodial Agreement), among
Oakwood Servicing Holdings Co., LLC, Oakwood Acceptance
Corporation, LLC, JPMorgan Chase Bank, as Custodian and as
Indenture Trustee for OMI Note Trust 2003-A Asset-Backed Notes,
Series 2003-A, Credit Suisse First Boston, New York Branch, as Note
Agent, OMI Note Trust 2003-A, and the other persons from time to
time parties thereto
In connection with the administration of the Files and related
Documents held by you as Custodian for __________ (the "Secured Party"), we
request the release, and acknowledge receipt, of the (File/specify documents)
for the Contract(s)/Mortgage Loan(s) described below, for the reason(s)
indicated.
Obligor's Name:
File Number:
Reason for Requesting Documents (check one)
______ 1. Receivable Paid in Full
______ 2. Foreclosure/Repossession
______ 3. Receivable liquidated by _______________________
______ 4. Other (explain) ______________________
If all or part of the Files was previously released to us, please release to us
our previous receipt on file with you, as well as any additional documents in
your possession relating to the above specified File.
By:_________________________________________
Name: ___________________________________
Title:___________________________________
D-1
Date:_____________, 200_
cc: [Secured Party]
[address]
[if to Indenture Trustee, with a copy to:
Credit Suisse First Boston, New York Branch
Eleven Madison Avenue
New York, New York 10010
Attention: Asset Finance Department
Telecopier No.: (212) 325-6677]
D-2