exv10w8



 



Exhibit 10.8


AMENDED AND RESTATED

CUSTODIAL AGREEMENT



     This Amended and Restated Custodial Agreement (this
“Agreement”) dated as of October 17, 2003 by and among
Oxford Finance Corporation, a Maryland corporation
(“Oxford”), National City Bank, as Administrative Agent for
itself and certain other lenders (the “Administrative
Agent”), and Riggs Bank, N.A., as custodian of the various loan
documents and pledged securities under this Agreement (the
“Custodian”).


RECITALS



     WHEREAS, Oxford and National City Bank individually and not as
Administrative Agent are parties to a Master Loan and Security Agreement dated
May 2, 2003, as amended on September 25, 2003 (as further amended, restated,
supplemented or otherwise modified and in effect from time to time, the
“Original Loan Agreement”).


     WHEREAS, pursuant to the Original Loan Agreement, Oxford is obligated to
deliver and assign to National City Bank certain original loan documents
generated by Oxford in the ordinary course of its business (such loan
documents, including without limitation promissory notes, security agreements,
and certain pledged securities, together with any other document or instrument
delivered by Oxford in connection therewith as required by the Loan Agreement,
collectively referred to as the “Loan Contracts”).


     WHEREAS, in connection with Oxford’s obligations to deliver the Loan
Contracts under the Original Loan Agreement, Oxford, Administrative Agent and
Custodian entered into a Custodial Agreement dated May 2, 2003, pursuant to
which Custodian was appointed agent to take and maintain possession of the Loan
Contracts (the “Original Custodial Agreement”);


     WHEREAS, Oxford, Administrative Agent, Bank of America, N.A.
(“BOA”) and certain other lenders (collectively with Agent
and BOA, the “Lenders”) have entered into a Master Loan and
Security Agreement of even date herewith (as amended, restated, supplemented or
otherwise modified and in effect from time to time, the “New Loan
Agreement”).


     WHEREAS, the Loan Contracts delivered to National City Bank pursuant to
the Original Custodial Agreement are intended to secure Oxford’s obligations
under the New Loan Agreement, all Loan Contracts in Custodian’s possession are
held as agent for Administrative Agent for the benefit of the Lenders;


     WHEREAS, pursuant to the New Loan Agreement, Oxford is obligated to
deliver and assign to the Administrative Agent, on behalf of the Lenders, Loan
Contracts.


     WHEREAS, the parties hereto desire to enter into this Agreement to amend
and restate the Original Custodial Agreement and to provide that the Custodian
shall remain as agent to take
and maintain possession of the Loan Contracts on behalf of the
Administrative Agent for the benefit of the Lenders.


 






 


     NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows


ARTICLE I.

CUSTODY OF LOAN CONTRACTS



     Section 1.1 Appointment of Custodian. With respect to
each Loan Contract delivered to the Custodian pursuant to the terms hereof, the
Administrative Agent, for itself and on behalf of the Lenders, hereby appoints
the Custodian as its agent to take possession of each Loan Contract so
delivered. The Custodian agrees to act as agent for the Administrative Agent
with respect to any such Loan Contracts and agrees that it shall segregate from
its other assets and hold all such Loan Contracts for the exclusive use and
benefit of the Administrative Agent for purposes of perfection, continuity and
maintenance of perfection of the Administrative Agent’s security interest in
the Loan Contracts, and shall make disposition thereof only in accordance with
written express instructions of the Administrative Agent to the Custodian as
provided herein.


     Section 1.2 Delivery of Loan Contracts. The
Administrative Agent and Oxford will deliver and release to the Custodian any
original Loan Contracts which may come into possession of the Administrative
Agent and Oxford. Each delivery of Loan Contracts to the Custodian shall
comply with the requirements as set forth on Exhibit A
hereto. Any such party delivering Loan Contracts to the Custodian shall also
deliver with such Loan Contracts a schedule (in paper and electronic format) of
such Loan Contracts being delivered to the Custodian (a “Loan Contract
Schedule”) (with a copy to the Administrative Agent in the case of
delivery of Loan Contracts by Oxford). Each Loan Schedule shall set forth the
information required by Section (i) of Exhibit A hereto.
Each Loan Contract delivered shall include the documentation required by
Sections (ii) and (iii) of Exhibit A hereto (the
“Required Documentation”).


     Section 1.3 Acceptance of Loan Contracts. Upon the
delivery of Loan Contracts by the Administrative Agent or Oxford, the Custodian
shall issue to the Administrative Agent in exchange therefor, a receipt (the
“Receipt”) in the form attached hereto as Exhibit
B. By the issuance of the Receipt, the Custodian, as the duly
appointed agent of the Administrative Agent shall be deemed to have
acknowledged receipt of such Loan Contracts delivered to the Custodian pursuant
to Section 1.2 above, subject to the verification provisions set forth herein
and in the Receipt for each individual contract, and to have declared that it
holds and will hold such Loan Contracts as agent for the Administrative Agent
from the date of such receipt to the return of such Loan Contracts pursuant to
the terms hereof (the “Release Date”). During the period
prior to the Release Date (the “Custodial Period”), the
Custodian shall not release or deliver any Loan Contracts or any portion
thereof to any person other than to the Administrative Agent or a person
designated by the Administrative Agent to the Custodian in writing or his
designee and the Custodian shall allow the Administrative Agent and its agents
access to the Loan Contracts during such period for purpose of its review
thereof. The Custodian shall use due care in the custody of the Loan
Contracts as is customary in the banking industry and in the Custodian’s
care of chattel paper pledged for its own individual benefit.


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     Section 1.4 Custodian’s Review of Loan Contracts. Not
later than three (3) business days following its receipt of the delivery of
Loan Contracts, the Custodian shall, with respect to each Loan Contract: (i)
verify all Loan Contracts listed on the Loan Contract Schedule are in its
possession, (ii) verify such Loan Contracts have been reviewed by it and have
not been mutilated, damaged, torn or otherwise physically altered (i.e.
handwritten, typewritten or stamped additions, changes or corrections which are
obvious on the face of such documents) and relate to each such Loan Contract,
(iii) verify, based on its examination and only as to the foregoing documents,
the information set forth on the Loan Contract Schedule with respect to the
account number, obligor name, commencement date, original term and contract
payment accurately reflects the information set forth in the Loan Contract,
(iv) verify each document in the Loan Contracts appears on its face to be an
executed original counterpart, and in the case of promissory notes, have
attached an original allonge endorsing payment to Administrative Agent for the
benefit of the Lenders and (v) notify the Administrative Agent of any
deficiency with respect to the Required Documentation. The Administrative
Agent shall be entitled to have one or more of its representatives present
during the time the Custodian is performing such verification or otherwise
handling the Loan Contracts. The Custodian shall be under no duty or obligation
to inspect or review or examine said document, instrument, certificate or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded or that they
purport to be on their face.


     Section 1.5 Release of Loan Contracts. The
Administrative Agent may, at any time during the Custodial Period, upon
delivery of an executed release in the form attached hereto as Exhibit
C, require that the Custodian deliver any or all of the Loan
Contracts to the Administrative Agent or its designee. Such request by the
Administrative Agent for the release of Loan Contracts may be done by the
Administrative Agent, at the Administrative Agent sole discretion, or upon the
written request of the Administrative Agent for such release.


     Section 1.6 Transmission of Custodian Loan Contracts.
Prior to any shipment of any Loan Contracts hereunder (at the written direction
of the Administrative Agent), the Administrative Agent shall deliver written
instructions to the Custodian as to the method of shipment and the shipper(s)
the Custodian is directed to utilize in connection with transmission of the
Loan Contracts in the performance of the Custodian’s duties hereunder.


     Section 1.7 Custodian’s Fees. The fees and charges of
the Custodian in connection with this Agreement shall be borne by Oxford.


ARTICLE II.

CONCERNING THE CUSTODIAN



     Section 2.1 Merger or Consolidation of Custodian. Any
Person into which the Custodian may be merged or converted or with which it may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall, upon (i) the execution of an
agreement to such effect and (ii) prior written notice to the
Administrative Agent, become the successor of the Custodian hereunder without
any further act by the Custodian.


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     Section 2.2 Representations and Covenant to the
Custodian. The Custodian hereby represents and covenants that it is
a depository institution organized and existing under the laws of the United
States or a state hereof subject to supervision or examination by a federal or
state authority, has a combined capital and surplus of at least $100,000,000
and it is qualified to do business in the jurisdiction in which it will hold
any Loan Contract.


     Section 2.3 Rights of Custodian.


          (a) The Custodian may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or other document
delivered to it and which in good faith it reasonably believes to be genuine
and which has been signed by the proper party or parties. The Custodian may
rely conclusively on and shall be protected by acting upon the written
instruction of any designated officer of the Administrative Agent.



          (b) The Custodian may consult outside counsel reasonably satisfactory to
it, and the opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such counsel,
except in the case of its willful misconduct or negligent performance or
omission.



          (c) The Custodian shall not be liable for any error of judgment, or for
any act done or step taken or omitted by it, in good faith, or for any mistakes
of fact or law, or for anything which it may do or refrain from doing in
connection herewith, except in the case of its willful misconduct or negligent
performance or omission.



          (d) Except as expressly act forth herein, the Custodian makes no warranty
or representation and shall have no responsibility (except as expressly set
forth in this Agreement) as to the completeness, validity, sufficiency, value,
genuineness, ownership or transferability of the Loan Contracts, and will not
be required to and will not make any representations as to the validity or
value (except as expressly set forth in this Agreement) of any of the Loan
Contracts. The Custodian shall not be obligated to take any legal action
hereunder which might in its reasonable judgement involve any expense or
liability unless it has been furnished with reasonable indemnity therefor.



          (e) Oxford shall indemnify and hold the Custodian, Administrative Agent
and each Lender harmless from and against all liabilities, damages, losses,
fees (including reasonable attorneys’ fees) and costs and expenses incurred by
the Custodian, the Administrative Agent or any Lender as a result of any legal
proceedings or in defending against any action or claim relating to the
performance of its duties hereunder, unless such liabilities, damages, losses,
fees, costs and expenses shall arise from the Custodian’s, the Administrative
Agent’s or a Lender’s negligence or willful misconduct or omission. The
Custodian’s, the Administrative Agent’s and each Lender’s rights to
indemnification shall survive the termination of this Agreement.



          Section 2.4 Examination of Custodial Files. Upon
reasonable prior notice to the Custodian, the Administrative Agent and its
agents, accountants, attorneys, internal and
external auditors, employees and other authorized representatives will be
permitted during normal business hours to examine the Loan Contracts.



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     Section 2.5 Insurance of Custodian. At its own
expense, the Custodian shall maintain at all times during the existence of this
Agreement and keep in full force and effect fidelity insurance, theft of
documents insurance, forgery insurance and errors and omissions insurance.
All such insurance shall be in amounts, with standard coverage and subject to
standard deductibles, all as is customary for insurance typically maintained by
banks, which act as Custodian.


     Section 2.6 Copies of Loan Contracts. Upon the
request of the Administrative Agent and at the cost and expense of the Lenders,
the Custodian shall promptly provide the Administrative Agent with (a) copies
of the Loan Contracts or (b) the original Loan Contracts as designated by the
Administrative Agent.


     Section 2.7 No Adverse Interest of Custodian. By
execution of this Agreement, the Custodian represents and warrants that it
currently holds, and during the existence of this Agreement shall hold, no
adverse interest, by way of security or otherwise, in any Loan Contract, and
hereby waives and releases any such interest which it may have in any Loan
Contract as of the date hereof.


     Section 2.8 Indemnification of the Bank. In the event
that the Custodian fails to comply with a request to deliver a Loan Contract or
any other document related to a Loan Contract that was in its possession within
five (5) business days after requested by the Administrative Agent as provided
in Sections 1.5 and 1.6 (a “Custodial Delivery Failure”),
then the Custodian shall with respect to any missing document related to such
Loan Contract indemnify, defend, and hold Administrative Agent and each Lender
and its and their designees harmless against any and all liabilities,
obligations, losses, claims, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements, including reasonable attorneys’ fees, that
may be imposed on, incurred by, or asserted against it or them in any way
relating to or arising out of such Custodial Delivery Failure, except as
provided for in Section 2.3(e). The foregoing indemnification shall survive any
termination or assignment of this Agreement. Upon shipment of any Loan
Contract or any other document relating to a Loan Contract as instructed by
Administrative Agent as provided in Sections 1.5 and 1.6, Custodian shall be
released from any further liability with respect to such Loan Contract.


ARTICLE III.

MISCELLANEOUS PROVISIONS



     Section 3.1 Notice. Unless otherwise specifically
provided, all notices, requests, consents and demands and other communications
required under this Agreement or pursuant to any other instrument or document
delivered hereunder shall be in writing and may be delivered personally, by
telegram or telex, air courier or by facsimile transmission (with an original
forwarded thereafter by first-class mail) or by registered or certified mail,
postage prepaid, return receipt requested, at the addresses specified below
(unless changed by the particular party whose address is stated herein by
similar notice in writing to all other parties hereto), in which case the
notice will be deemed delivered when received:


          (a) To Oxford Finance Corporation, 133 N. Fairfax Street, Alexandria,
Virginia 22314, Attention: Michael Altenburger.



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          (b) To Administrative Agent, National City Bank, One South Broad Street,
13th Floor, 1345 Chestnut Street, Philadelphia, Pennsylvania 19107, Attention:
Michael J. Labrum



          (c) To
Riggs Bank, N.A., 808 17th Street N.W., Washington, DC 20006,
Attention: Ayanna Fowlkes Brown.



     Section 3.2 Amendments. No modification of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto.


     Section 3.3 Governing Law. This Agreement shall be
deemed a contract made under the laws of, and to be performed in, the
Commonwealth of Pennsylvania and shall be construed and enforced in accordance
with and governed by the laws of the Commonwealth of Pennsylvania.


     Section 3.4 Counterparts. This Agreement may be
executed in any number of counterparts, and by the different parties hereto on
the same or separate counterparts, each of which counterparts, when so executed
and delivered shall be deemed to be an original instrument and all of the
counterparts, taken together, shall constitute one and the same Agreement.


     Section 3.5 Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this Agreement shall
be, for any reason whatsoever, held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement.


     Section 3.6 Termination. The Custodian or the
Administrative Agent may terminate its obligations under this Agreement upon at
least 60 days notice to the non-terminating party. The costs associated with
the termination of this Agreement, including the costs associated with the
transfer of the Loan Contracts, shall be borne by Oxford. The payment of such
successor custodian’s fees and expenses shall be borne by Oxford. Upon such
termination, the Custodian shall promptly deliver to the Administrative Agent
or its written designee all Loan Contracts being administered under this
Agreement.


     Section 3.7 Successors and Assigns. This Agreement
shall inure to the benefit of, and be binding upon, the successors and assigns
of each of Oxford, the Custodian and the Administrative Agent.


     Section 3.8 Removal of Custodian. The Administrative
Agent, with or without cause, may upon at least thirty (30) days’ notice remove
and discharge the Custodian from the performance of its duties under this
Agreement by written notice from the Administrative Agent to the Custodian,
with a copy to Oxford. Having given notice of such removal, the Administrative
Agent promptly shall appoint a successor Custodian to act on behalf of the
Administrative Agent and each Lender by written instrument. In the event of
any such
removal, the Custodian shall promptly transfer to the successor Custodian,
as directed by and at the sole expense of the Oxford, all of the Loan Contracts
being administered under this Agreement.


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     IN WITNESS WHEREOF, the parties thereto have executed this Agreement as of
the date first set forth above.



	 	 	 	 	 
	 	 	OXFORD FINANCE CORPORATION
	 	 	 	 	 
	 	 	
By:
	 	/s/ Michael J. Altenburger            
	 	 	 	 	Name: Michael J. Altenburger
	 	 	 	 	Title: Chief Financial Officer
	 	 	 	 	 
	 	 	NATIONAL CITY BANK, as Administrative Agent
	 	 	 	 	 
	 	 	
By:
	 	/s/ Michael Labrum         
	 	 	 	 	Name: Michael Labrum
	 	 	 	 	Title: Senior Vice President
	 	 	 	 	 
	 	 	RIGGS BANK, N.A., as Custodian
	 	 	 	 	 
	 	 	
By:
	 	/s/ John A. Murphy         
	 	 	 	 	Name: John A. Murphy
	 	 	 	 	Title: Managing Director