EXHIBIT 99.6
CUSTODIAL AGREEMENT
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This CUSTODIAL AGREEMENT (the "Agreement") is entered into as of
February 9, 2001, by and among OMI NOTE TRUST 2001-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, individually ("OAC"), as Seller
(together with its successors in such capacity, the "Seller") and as Servicer
(together with its successors in such capacity, the "Servicer"), THE CHASE
MANHATTAN 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 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;
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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 Depositor, the Transferor, The Chase Manhattan Bank, as Backup
Servicer, Indenture Trustee and 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
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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.
"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.
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(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 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
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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 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
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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.
(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.
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(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 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.
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(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 "Indemnitiees")
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 Indemnitiees 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 Indemnitiees and each
of them harmless from and against any and all Losses that may be imposed on,
incurred by, or asserted against, the Indemnitiees or any of them in connection
with or arising out of the Custodian's performance under this Agreement,
provided the Indemnitiees 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.
(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.
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(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.
(a) Appointment. Each of each Debtor, the Seller, the Servicer, each
Secured Party and the Note Agent hereby appoints and designates The Chase
Manhattan 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
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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 the 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.
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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 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
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Asset Finance Dept.
Telecopier: 212-325-6677
(B) If to the Issuer: OMI Note Trust 2001-A
c/o Wilmington Trust Company
Xxxxxx Square North
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust
Administration//
OMI Note Trust 2001-A
Telecopier No.: (000) 000-0000
(D) If to the Seller or
the Servicer: Oakwood Acceptance Corporation
0000 XxXxxxx Xxxx
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Xxxxxxxxxx, XX 00000-0000
Attention: Treasurer
Telecopier No.: (000) 000-0000
(D) If to the
Indenture Trustee: The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Institutional Trust Services
Tel: 000-000-0000
Telecopier: 000-000-0000
(D) If to the Custodian: The Chase Manhattan Bank
0000 Xxxxxx Xxxxxx, 00xx xxxxx
Xxxxxxx, XX 00000
Attn: Custody Manager
Tel: 000-000-0000
Telecopier: 000-000-0000
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 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
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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
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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 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 23 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 2001-A, in the exercise
of the powers and authority conferred and vested in it under the related Trust
Agreement, (b) each of
-14-
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.
-15-
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first set forth above.
OMI NOTE TRUST 2001-A
By: Wilmington Trust Company, not
individually, but solely in its capacity as
Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH, as Note Agent
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate
THE CHASE MANHATTAN BANK, as
Custodian and Indenture Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO CUSTODIAL AGREEMENT]
OAKWOOD ACCEPTANCE
CORPORATION, as Seller and Servicer
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
[SIGNATURE PAGE TO CUSTODIAL AGREEMENT]
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: The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000, 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,
- A-1 -
The Chase Manhattan Bank, as Custodian
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Received and Agreed to:
[Name of Investor/Lender's Custodian]
[Name of Investor/
Lender]
By:
-------------------------------------
By: Name:
---------------------------------- -----------------------------------
Name: Title:
-------------------------------- ----------------------------------
Title: Date:
------------------------------- -----------------------------------
Date:
--------------------------------
-A-2-
Exhibit C
DELIVERY LETTER
____________, 20__
TO: The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ATTN: Institutional Trust Services
----------------------------
Pursuant to the terms of the Custodial Agreement, dated as of
February 9, 2001, (the "Custodial Agreement"; defined terms used in this letter
shall have the meanings assigned to them in the Custodial Agreement), among
Oakwood Acceptance Corporation, The Chase Manhattan Bank, as Custodian and as
Indenture Trustee for OMI Note Trust 2001-A Asset-Backed Notes, Series 2001-A,
Credit Suisse First Boston, New York Branch, as Note Agent, OMI Note Trust
2001-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.
- C-1 -
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-2 -
Exhibit A
to
DELIVERY LETTER
File Name of Date of Original Amount
Number Obligor Contract of Contract
-------- ------- -------- -------------
- D-1 -
Exhibit D
SERVICING REQUEST FOR RELEASE OF DOCUMENTS
To: [NAME OF CUSTODIAN]
[ADDRESS OF CUSTODIAN]
Re: Custodial Agreement, dated as of February 9, 2001, (the
"Custodial Agreement"; defined terms used in this letter shall have
the meanings assigned to them in the Custodial Agreement), among
Oakwood Acceptance Corporation, The Chase Manhattan Bank, as
Custodian and as Indenture Trustee for OMI Note Trust 2001-A
Asset-Backed Notes, Series 2001-A, Credit Suisse First Boston, New
York Branch, as Note Agent, OMI Note Trust 2001-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:___________________
- D-1 -
Name:
Title:
Date:______________ __, 200_
cc: [Secured Party]
[address]
[if to Indenture Trustee, with a copy to:
Credit Suisse First Boston, New York Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Finance Department
Telecopier No.: (000) 000-0000]
- D-2 -
