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EXHIBIT 10.2
CUSTODIAN AGREEMENT
CUSTODIAN AGREEMENT (the "Agreement") dated as of June 17, 1997 among
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. (the "Purchaser"), FIRST MERCHANTS
ACCEPTANCE CORPORATION as seller under the Purchase Agreement (as defined
below) (in such capacity, the "Seller"), and as servicer under the Servicing
Agreement (as defined below) (in such capacity, the "Servicer") and ▇▇▇▇▇▇
TRUST AND SAVINGS BANK, an Illinois banking corporation, in its capacity as
custodian hereunder (the "Custodian").
WHEREAS, the Purchaser intends to purchase from the Seller certain retail
installment sale contracts (the "Receivables") secured by automobiles, vans and
light-duty trucks (the "Financed Vehicles") pursuant to the terms and
conditions of a Receivables Purchase Agreement, dated as of June 17, 1997 (the
"Purchase Agreement"), between the Seller and the Purchaser; and
WHEREAS, the Purchaser will purchase Receivables on a servicing released
basis and has arranged for the Receivables to be serviced pursuant to the terms
and conditions of a Servicing Agreement, dated as of June 17, 1997 (the
"Servicing Agreement") between the Purchaser, the Servicer and ▇▇▇▇▇▇ Trust and
Savings Bank; and
WHEREAS, the Purchaser desires to have the Custodian take possession of
the Legal File for each Receivable, along with certain other documents
specified herein, and to perform certain procedures in connection therewith.
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
Section 1. Definitions. Initially capitalized terms used herein and not
defined herein shall have the meanings given them in the Purchase Agreement
and/or the Servicing Agreement, as applicable, copies of both of which has been
delivered to the Custodian.
Section 2. Delivery of Documents. (a) The Seller has delivered and
released, or will cause to be delivered and released, to the Custodian the
documents identified in this Section 2
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pertaining to each of the Receivables identified on a Schedule of Receivables
(the "Schedule of Receivables").
Prior to the Closing Date (the "Delivery Date"), the Seller shall deliver
or shall cause to be delivered to the Custodian and Purchaser a preliminary
Schedule of Receivables and each of the following with respect to the
Receivables identified in such Schedule of Receivables, in form and content
acceptable to the Purchaser:
(i) the fully executed original of the Receivable with executed
assignment from the related Dealer to Seller and any intervening assignments;
and
(ii) a fully executed assignment in blank from Seller.
All Receivable documents held by the Custodian as to each Receivable under
any provision of this Agreement are referred to herein as the "Legal File."
The Seller shall also cause each Schedule of Receivables to be delivered via
electronic transmission to the Custodian in a format acceptable to the
Custodian on the same day that such Schedule of Receivables is delivered to the
Custodian in accordance with this Section.
(b) In addition to the documents delivered to the Custodian pursuant to
Section 2(a) hereof, prior to the Closing Date the Seller shall deliver or
cause to be delivered to the Custodian the following: (i) a notification of
sale by Seller in the form attached hereto as Exhibit A ("Notification of
Sale") and (ii) an original executed Consent with respect to the Receivables
(the "Consent"), in form and substance acceptable to the Custodian and the
Purchaser and copies of any partial release UCC-3 financing statements executed
in connection therewith by LaSalle National Bank, as Agent for the Lenders
identified in that certain Fourth Amended and Restated Loan and Security
Agreement dated as of February 28, 1996 (the "Loan Agreement") among the
Purchaser, such Lenders and such Agent.
(c) From time to time, the Purchaser may submit additional documents for
one or more of the Receivables in custody of the Custodian, attached to a
document transmittal log. Upon receipt of
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these additional documents, the Custodian shall update the appropriate Legal
File to reflect the receipt of (i) supplementation or replacement of any of the
documents in the Legal File and (ii) the delivery of additional documents,
assignments, instruments, agreements, certificates or other writings and
additional financing statements, which are necessary to effect the sale or
transfer of the Receivable.
Section 3. Custody of Files. (a) The Custodian shall segregate and
maintain continuous custody of all documents constituting the Legal File
received by it in secure and fire resistant facilities in accordance with
customary standards for such custody. Prior to receipt by the Seller of the
purchase price for the Receivables (the "Purchase Price") from the Purchaser,
the Custodian shall hold the related Legal Files on behalf of the Seller. Upon
receipt from the Purchaser of the Purchase Price by the Seller, the Custodian
shall automatically cease to hold the related Legal Files in its capacity as
custodian for the Seller or any Person other than the Purchaser or its assigns
but shall instead hold such documents as bailee, as that term is used in
Section 9-305 of the Uniform Commercial Code (the "UCC"), for the Purchaser
pursuant to, and in accordance with, this Agreement. During the term of this
Agreement and after the Purchaser has paid the related Purchase Price, the
Custodian shall retain custody of the Legal Files on behalf of the Purchaser
until it is directed in writing by the Purchaser to release any or all of such
Legal Files.
(b) The Custodian is hereby authorized, upon receipt of a written request
and receipt provided by the Servicer or its designee, the Purchaser or the
Purchaser's designee, as the case may be, in the form attached as Exhibit B
hereto (a "Request for Release"), to release to the Servicer or its designee,
the Purchaser or the Purchaser's designee, as the case may be, the Legal File
or certain documents therefrom specified in the Request for Release; provided
that the Purchaser must consent in writing (x) for any release to the Servicer
that would relate to more than 25 Receivables and (y) for any release to the
Servicer in connection with the liquidation of a Receivable. Subsequent to the
payment of the Purchase Price, all Documents so released shall be held in trust
for the benefit of the Purchaser. Unless the Legal File is released because
the related Receivable was paid in full,
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repurchased or liquidated, the Servicer or its designee or the Purchaser or its
designee shall return any documents so released promptly after the need for
such Person's possession of such documents no longer exists.
(c) Upon the repurchase of any Receivable pursuant to the Purchase
Agreement or the Servicing Agreement or the payment in full of any Receivable,
which shall be evidenced by the delivery to the Custodian of a Request for
Release that also certifies the payment in full of such Receivable, the
Custodian shall release the related Legal File to the Person specified in such
Request for Release.
Section 4. Certification of Receipt by Custodian. (a) The Custodian
shall promptly review each document in the Legal Files delivered to it
hereunder and, subject to Section 22(c) hereof, ascertain that all documents
required to be delivered to it pursuant to Section 2 hereof in respect of each
Receivable are in its possession and shall deliver to the Purchaser on the
Closing Date a certificate (the "Custodial Certificate"), in the form of
Exhibit C attached hereto, as to each Receivable listed in the Schedule of
Receivables, that (i) lists the Legal Files reviewed and any exceptions to the
foregoing; (ii) states that the documents set forth in Section 2(a) have been
reviewed by it and appear regular on their face; (iii) states that it has
compared the following items set forth in each Legal File to the information
contained in the Schedule of Receivables and found no exceptions other than as
listed in the Custodial Certificate: account number; Obligor name; make, model
and model year; Amount Financed; (iv) states that the signature block of the
Receivable contains an ink signature; (v) states that the Legal File contains a
chain of original and any intervening assignments of the Receivable and the
lien on the related Financed Vehicle from Dealer to Seller and Seller to blank;
(vi) states that all documents required to be delivered to it pursuant to
Section 2(a) hereof are in its possession; (vii) states that an original
executed Notification of Sale by Seller has been received by the Custodian and
(viii) states that an original executed Consent and copies of any partial
release UCC-3 financing statements executed in connection therewith have been
received by the Custodian. Any exceptions to any of the
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foregoing shall be noted on an exception report to accompany the Custodial
Certificate.
(b) The Purchaser may designate any Person as the recipient of each
Custodial Certificate, Notice of Beneficial Ownership (as defined below) or
Custodian Confirmation Certificate (as defined below) of Custodian reflecting
the interest of the Purchaser. Such designation shall be made (or may be
changed) by the Purchaser in writing.
Section 5. Unfunded Receivables. (a) If a Receivable is not purchased by
the Purchaser because of a defect in the related Legal File, or if the
Purchaser gives written notice to the Custodian that it will not be purchasing
a specific contract for any other reason, the Custodian will return the Legal
File relating to the Receivable to the Seller (or such other person that the
Seller shall indicate in writing) at the written direction of the Seller within
two Business Days of such Closing Date, unless otherwise instructed in writing
by the Seller.
(b) If the Purchaser gives written notice to the Custodian that it will
not be purchasing all of the Receivables that it is scheduled to purchase on
the Closing Date, then the Custodian shall maintain custody of the Legal Files
relating to those Receivables not purchased until the Custodian receives a
written direction from the Seller instructing the Custodian to return such
Legal Files to the Seller. Upon receiving such written direction from the
Seller, the Custodian shall return such Legal Files to the Seller (or such
other Person that the Seller shall indicate in writing) within two Business
Days of receiving such direction.
Section 6. [Reserved.]
Section 7. Attachment of Legal Files. In the event the Seller, the
Purchaser, or the Custodian shall be served by a third party with any type of
levy, attachment, writ or garnishment with respect to any Receivable, or in the
event a third party shall institute any court proceeding by which any document
in the Legal File shall be required to be delivered otherwise than in
accordance with the provisions of this Agreement, the party which received such
service shall immediately deliver or cause to be delivered to
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the other parties hereto copies of all court papers, orders, documents and
other materials concerning such proceedings. The Custodian shall continue to
hold and maintain all documents in the Legal File received by it pursuant to
the provisions of this Agreement pending an order of a court of competent
jurisdiction permitting or directing disposition thereof. Upon final
determination of such court, the Custodian shall dispose of documents in the
Legal File held by it as directed by such determination or, if no such
determination is made, in accordance with the provisions of this Agreement.
Expenses of the Custodian incurred as a result of the attachment of any
documents in the Legal File shall be borne directly by either (i) the Seller if
such expenses relate to a breach of the terms and conditions of the Purchase
Agreement or any action that arose prior to such sale or (ii) the Purchaser in
all other cases.
Section 8. Transfers of Beneficial Ownership Interest to Third Persons.
The Custodian acknowledges that the Purchaser may, but need not, transfer all
or part of its beneficial ownership interest in any or all Receivables as
collateral for a loan, pursuant to a repurchase transaction, or to a
third-party custodian pursuant to a repurchase transaction, or in a sale. The
Purchaser shall deliver to the Custodian the Notice to Custodian (as defined
below) at least twenty-four hours prior to any such transfer, which written
notice will provide that the Purchaser will transfer all or part of its
beneficial ownership interest in the Receivables identified on a schedule to
such notice (the "Notice Schedule") to a third person as well as the Custodial
Certificate relating to such Receivables, endorsed for transfer. Within
twenty-four (24) hours of receipt by the Custodian of such written notice, or
on the Transfer Date (as defined below), whichever is later, the Custodian
shall promptly (i) acknowledge by letter in the form of Exhibit D attached
hereto (a "Notice of Beneficial Ownership") to such third person that it is
holding the Receivables identified in the related Notice Schedule solely and
exclusively as the custodian for such third person and (ii) deliver to the
Purchaser or its designee a Certificate in the form of Exhibit E hereto (a
"Custodian Confirmation Certificate") indicating the Receivables, if any, held
pursuant to the aforementioned endorsed Custodial Certificate that shall be
retained by the Purchaser; provided, however, that the Custodian shall not be
required to deliver the Notice of Beneficial
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Ownership or Custodian Confirmation Certificate until the Custodian has
received from the Purchaser appropriate schedules to be attached to the Notice
of Beneficial Ownership and the Custodian Confirmation Certificate. The notice
sent by the Purchaser to the Custodian shall be in substantially the form of
Exhibit F attached hereto (a "Notice to Custodian") and shall specify (i) the
name of the third person, (ii) the address of the third person which may be an
address in care of the Purchaser, (iii) the Notice Schedule and (iv) the
effective date of transfer (the "Transfer Date"). Upon receipt of a Notice to
Custodian from the Purchaser, the Custodian shall (a) retain possession and
custody of the Legal File with respect to the Receivables in the Notice
Schedule as bailee (as that term is used in Section 9-305 of the UCC) of and
custodian for such third person, and (b) make appropriate notations in the
Custodian's books and records reflecting that the Receivables identified in the
Notice Schedule are owned by such third person.
Subsequent transfers of beneficial ownership interests in the Receivables,
identified in the Notice Schedule by a predecessor third person, shall be
effected by delivery from such predecessor third person of a Notice to
Custodian specifying the subsequent third person to whom such Receivables have
been transferred, such subsequent third person's address and the Notice
Schedule identifying such transferred Receivables. Upon receipt of such Notice
to Custodian, the Custodian shall (a) promptly deliver a Notice of Beneficial
Ownership to the subsequent third person designated in the Notice to Custodian
received from the predecessor third person that it is acting solely and
exclusively as bailee (as that term is used in Section 9-305 of the UCC) of and
custodian for such subsequent third person, (b) make appropriate notations in
the Custodian's books and records reflecting that the Receivables identified in
the Notice Schedule are owned by such subsequent third person and (c) deliver
to such predecessor third person a Custodian Confirmation Certificate
reflecting such transfer.
The Custodian shall segregate and maintain continuous custody of such
Legal Files for the benefit of the third person to whom it has sent the Notice
of Beneficial Ownership and shall accept instructions from no other person with
respect to such Legal Files for so long as such third person has an interest in
such Receivables and until and unless otherwise instructed by such third
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person. The Purchaser shall remain primarily liable for all of the Purchaser's
obligations with respect to such transferred Legal Files until the transferee
assumes the liabilities of the Purchaser hereunder, including those set forth
in Sections 9 and 22 hereof.
Section 9. Custodian Fees and Expenses; Successor Custodian. (a) As
compensation for its services hereunder, the Custodian shall be entitled to
receive its fees as set forth on that certain fee schedule addressed to the
Seller and dated May 23, 1997. The Custodian shall also be entitled to recover
out-of-pocket expenses (including, without limitation, legal fees and expenses)
and reasonable additional fees in connection with any further Receivable review
conducted in connection with or resulting from an assignment made by the
Purchaser under Section 17 of this Agreement. After payment of the Purchase
Price, the Seller shall not have any right or privilege to instruct the
Custodian with respect to the Legal Files.
(b) The Custodian or any successor Custodian may resign at any time by
giving 30 days' written notice to the Servicer and the Purchaser. Such
resignation shall take effect upon the appointment of a successor Custodian by
the Purchaser, which successor Custodian shall be a bank or trust company
acceptable to the Purchaser; provided, however, in the event a successor
Custodian is not appointed within 60 days of such notice of resignation, the
Custodian may petition a court of competent jurisdiction for the appointment of
a successor Custodian.
(c) The Purchaser may at any time remove and discharge the Custodian or
any successor Custodian thereafter appointed from the performance of its duties
under this Agreement by written notice from the Purchaser to the Custodian or
the successor Custodian, as applicable, with copies to the Servicer. Such
removal shall take effect upon the appointment of a successor Custodian by the
Purchaser; provided, however, in the event a successor Custodian is not
appointed within 60 days of such notice of resignation, the Custodian may
petition a court of competent jurisdiction for the appointment of a successor
Custodian.
(d) In connection with the appointment of a successor Custodian pursuant
to paragraphs (b) or (c) above, the Custodian
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agrees to deliver all Legal Files to such successor Custodian, provide a copy
of its records relating to the Receivables to such successor Custodian, and
otherwise cooperate with the appointment of such successor Custodian. The
Custodian shall not be liable for any acts or omissions of a successor
Custodian.
Section 10. Access to Documents. Upon reasonable prior written notice to
the Custodian, the Purchaser and their agents, accountants, attorneys, auditors
and potential or actual transferees under Section 8 hereof will be permitted,
at their own expense, during normal business hours to examine and copy the
Legal Files, documents, records and other papers in possession of or under the
control of the Custodian relating to any or all of the Receivables. Upon the
reasonable request of the Purchaser, the Custodian shall provide the Purchaser
with copies of the documents relating to any of the Receivables at the
Purchaser's sole cost and expense.
Section 11. Errors and Omission and Fidelity Insurance. The Custodian
shall, at its own expense, maintain at all times during the existence of this
Agreement (1) a fidelity bond, (2) theft of documents insurance, (3) forgery
insurance and (4) errors and omissions insurance; provided that the parties
hereto understand and acknowledge that the Custodian may maintain the foregoing
insurance by self-insuring or insuring through an Affiliate. All such
insurance shall be with standard coverage and subject to deductibles as is
customary for insurance typically maintained by money center banks which act as
custodians.
Section 12. Representations and Warranties of the Custodian. The
Custodian hereby represents and warrants to, and covenants with, the Seller,
the Servicer and the Purchaser that, as of the date hereof:
(a) The Custodian is an Illinois banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Illinois and has the power and authority to own its assets and
to transact the business in which it is presently engaged.
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(b) The Custodian has the full power and authority to hold each
Receivable, as Custodian, and has the full power and authority to
execute, deliver and perform, and to enter into and consummate all
transactions contemplated by, this Agreement, has duly authorized the
execution, delivery and performance of this Agreement and has duly
executed and delivered this Agreement, and this Agreement constitutes a
legal, valid and binding obligation of the Custodian, enforceable against
it in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(c) The consummation of the transactions contemplated hereby, and
the fulfillment of the terms hereof and thereof shall not conflict with,
result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
articles of association, or by-laws of the Custodian, or any indenture,
agreement, or other instrument to which the Custodian is a party or by
which it shall be bound; nor result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any such
indenture, agreement, or other instrument, nor violate any law or any
order, rule, or regulation applicable to the Custodian of any court or of
any federal or state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Custodian or
its properties.
(d) All approvals, licenses, authorizations, consents, orders or
other actions or registrations with any person or any governmental body
or official required to be obtained on or prior to the date hereof in
connection with the execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof have been obtained.
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Section 13. Security Interest. If, pursuant to the Purchase Agreement,
the sale or purchase of the Receivables is deemed to be a loan or a transaction
other than a sale or purchase of the Receivables, and, as a result, the Seller
is deemed to have granted a security interest to the Purchaser in and to the
Receivables, and proceeds thereof, then the Notification of Sale by Seller in
respect of the Receivables delivered hereunder shall be deemed to be a
notification of pledge by the Seller, as pledgor, to the Purchaser, as pledgee,
and the books and records of the Custodian and the provisions of this Agreement
shall be deemed to have been amended, mutatis mutandis, to reflect the
foregoing.
Section 14. No Adverse Interests. By its acceptance of each Legal File,
the Custodian covenants and warrants to the Purchaser that: (a) upon receipt of
the Consent, the Custodian (in such capacity) holds no adverse interests, by
way of security or otherwise, in the related Receivable and (b) the Custodian
(in such capacity) hereby waives and releases any such interest in such
Receivable which it has or which it may thereafter acquire prior to the time of
release of such Receivable from the terms of this Agreement.
Section 15. Amendments. This Agreement may be amended from time to time
only by written agreement of the parties hereto.
Section 16. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, and all
of which shall constitute one and the same instrument.
Section 17. Assignment. This Agreement shall bind the parties hereto and
their respective successors. This Agreement may not be assigned by the Seller,
the Servicer or the Custodian without the prior written consent of the
Purchaser but may be assigned by the Purchaser without any consent, notice or
approval to or by the other party hereto.
Section 18. Effect of Invalidity of Provisions. In case any one or more
of the provisions contained in this Agreement should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions
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contained herein or therein shall in no way be affected, prejudiced or
disturbed thereby.
Section 19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 20. [Reserved.]
Section 21. Notices. Any notices, consents, directions and other
communications given under this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered at, mailed by
overnight express and sent to, or telecopied to the respective addresses or
facsimile numbers, as the case may be, of the parties hereto set forth on the
signature page hereof or to such other address or number as any party shall
give in a notice to the other parties pursuant to this Section.
Section 22. Limitation of Liability; Indemnification. (a) The Custodian
undertakes to perform only such duties and obligations as are specifically set
forth in this Agreement, it being expressly understood by the Purchaser and the
Seller that there are no implied duties or obligations under this Agreement.
Neither the Custodian nor any of its officers, directors, employees or agents
shall be liable, directly or indirectly, for any damages or expenses arising
out of the services performed under this Agreement other than damages which
result from the negligence or willful misconduct of it or them.
(b) Except as described in the following sentence, the Purchaser agrees
to indemnify and hold the Custodian, its officers, directors, employees and
agents harmless against any and all losses, liabilities, damages, fees
(including, without limitation, reasonable attorneys' fees and expenses), costs
and expenses that may be imposed or incurred by or assessed against it or them,
in the absence of its or their negligence or willful misconduct that in any way
relates to or arises out of the services performed by it or them under this
Agreement, the Purchase Agreement or the Servicing Agreement or any action
taken or not taken by it or them in accordance with this Agreement, the
Purchase Agreement or the Servicing Agreement. In the event of an attachment
of a Legal
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File, the party hereto served as described in Section 7 hereof shall indemnify
the Custodian as provided for in the preceding sentence with respect to any and
all costs and expenses incurred by the Custodian caused by such attachment.
(c) Subject to Section 4 hereof, the Custodian makes no warranty or
representation and shall have no responsibility as to the completeness,
validity, sufficiency, value, genuineness, ownership or transferability of the
Receivables and the Legal Files and will not be required to and will not make
any representations as to the validity or value of any of the Receivables and
the Legal Files. Subject to Section 4 hereof, the Custodian makes no warranty
or representation and shall have no responsibility (i) as to whether a
Receivable has been originally executed and (ii) as to whether any such
signature has been duly authorized.
(d) Except as otherwise provided in Section 22(a) hereof, 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.
(e) The Custodian may rely on and shall be protected in acting in good
faith upon any certificate, instrument, opinion, notice, letter, telegram or
other document delivered to it and which in good faith it believes to be
genuine and which has been signed by the proper party or parties. The
Custodian may rely on and shall be protected in acting in good faith upon the
written instructions of any designated officer of the Seller, to the extent the
Seller is expressly permitted herein to give instructions, the Servicer or the
Purchaser.
(f) The Custodian may at its own expense consult counsel satisfactory to
it and the advice and 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 such advice or
opinion of such counsel.
(g) The Custodian shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of its rights or
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powers, if the Custodian believes that repayment of such funds (repaid in
accordance with the terms of this Agreement) or adequate indemnity against such
risk or liability is not reasonably assured to it.
Section 23. Merger, Conversion, Consolidation or Succession to Business
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
corporation succeeding to all or substantially all of the corporate trust
business of the Custodian, shall be the successor of the Custodian hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
Section 24. Termination. This Agreement shall terminate upon the receipt
of written notice from the Purchaser to the Custodian of its intent to
terminate this Agreement. Upon such termination, the Custodian shall promptly
transfer the Legal Files as directed by the Purchaser in such written notice.
Termination of the Custodian's obligations hereunder shall not in any event be
effective until the Legal Files are delivered as so directed. Notwithstanding
any such termination, the indemnity obligations and the representations and
warranties made hereunder shall survive the termination of this Agreement.
Section 25. Construction. The headings in this Agreement are for
convenience only and are not intended to influence its construction.
References to Sections and Exhibits in this Agreement are to the Sections of
and Exhibits to this Agreement. The Exhibits are part of this Agreement. In
this Agreement, the singular includes the plural, the plural the singular, and
the words "and" and "or" are used in the conjunctive or disjunctive as the
sense and circumstances may require.
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IN WITNESS WHEREOF, the Seller, the Purchaser, the Servicer and the
Custodian have caused this Agreement to be duly executed as of the date and
year first above written.
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC., as Purchaser
By:
-------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST MERCHANTS ACCEPTANCE CORPORATION,
as Seller
By:
-------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST MERCHANTS ACCEPTANCE CORPORATION,
as Servicer
By:
-------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as
Custodian
By:
----------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Indenture Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17
EXHIBIT A
NOTIFICATION OF SALE BY SELLER
To: Greenwich Capital Financial ▇▇▇▇▇▇ Trust and Savings Bank
Products, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Attention: Indenture Trust
Division
The undersigned (the "Seller") hereby notifies you that certain of
the Receivable documents (collectively, the "Legal File") relating to the
Receivables specified in the attached Schedule of Receivables (the
"Receivables") which are required to be delivered to ▇▇▇▇▇▇ Trust and
Savings Bank, as custodian and paying agent (the "Custodian"), under the
Custodian Agreement (defined below) have been deposited by us with the
Custodian pursuant to a Receivables Purchase Agreement (the "Agreement")
dated as of June 17, 1997, between the Seller and Greenwich Capital
Financial Products, Inc. (the "Purchaser"), are now and hereafter to be
held by the Custodian pursuant to the provisions of a Custodian
Agreement, dated as of June 17, 1997, among the Seller, the Purchaser,
the Servicer identified therein and the Custodian (the "Custodian
Agreement") until released or transferred as provided therein. The
Seller further certifies to the Purchaser and the Custodian that all
conditions precedent to the delivery of the Receivables under the
Agreement have been met and that the representations and warranties with
respect to the Receivables set forth in the Agreement are true and
correct as if made on and as of the date hereof.
A sale of the Receivables has been made to the Purchaser pursuant to
the Agreement. The Consent releasing the liens identified therein has
been executed and delivered to us with respect to the Receivables and is
being sent to you simultaneously herewith. The Custodian is hereby
instructed to enter the Purchaser's name and address in its records as
the owner of such Receivables and to promptly provide to the Purchaser an
acknowledgment thereof by signing in the space
A-1
18
provided below and delivering an original hereof to the Purchaser at the
above address. Such acknowledgment will serve to confirm that such
Receivables and this Notification of Sale by Seller have been duly
received by the Custodian and that (i) such Receivables and the documents
set forth in Section 2 of the Custodian Agreement have been reviewed by
the Custodian and duly
A-2
19
accepted for deposit by the Custodian and (ii) such Receivables are being
held by the Custodian as bailee, as that term is used in Section 9-305 of
the UCC, for the Purchaser (in its capacity as owner thereof).
In the event any such sale is deemed to be other than a sale of the
Receivables then, in accordance with the Agreement and the Custodian
Agreement, delivery of this Notification of Sale by Seller shall be
deemed to be delivery of a notification of pledge by the Seller, as
pledgor, to the Purchaser, as pledgee, and the provisions hereof shall be
deemed to have been amended, mutatis mutandis, to reflect such pledge.
FIRST MERCHANTS ACCEPTANCE
CORPORATION
By
-----------------------
Name:
Title:
Date:
ACKNOWLEDGED:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Custodian
By
----------------------------
Name:
Title:
Date:
A-3
20
EXHIBIT B
REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS
To: ▇▇▇▇▇▇ Trust and Savings Bank, as Custodian
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Indenture Trust Division
Re: CUSTODIAN AGREEMENT dated as of June 17, 1997, among
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("GCFP"),
FIRST MERCHANTS ACCEPTANCE CORPORATION,
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Custodian
Ladies and Gentlemen:
In connection with the administration of the Receivables held by you as
the Custodian for GCFP, we request the release, and acknowledge receipt, of the
(Legal File/specify documents) for the Receivable described below, for the
reason indicated. Terms not otherwise defined herein are used as defined in
the above-referenced Custodian Agreement.
Obligor's Name, Address & Zip Code:
Receivable Number:
Reason for Requesting Documents (check one or more)
1. Receivable Paid in Full (1)
-----
2. Receivable Repurchased (1)
-----
3. Receivable Liquidated (1)
-----
--------------------
(1) If this box is checked, the undersigned also represents and warrants that
the related receivable has been paid in full to the Purchaser.
B-1
21
4. Receivable in Repossession
-----
5. Other (explain)
-----
If item 1, 2 or 3 above is checked, and if all or part of the Legal File 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 Receivable.
If item 4 or 5 above is checked, upon our return of the above document(s) to
you as the Custodian, please acknowledge your receipt by signing in the space
indicated below, and returning this form.
------------------------------
By
---------------------------
Name:
---------------------
Title:
---------------------
Date:
---------------------
DOCUMENTS RETURNED TO THE CUSTODIAN:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as Custodian
By
----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
--------------------------------
[only required if release made in connection with a liquidation:
CONSENTED TO BY:
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC., as Purchaser
By:
-----------------------------
Name:
Title:]
B-2
22
EXHIBIT C
CUSTODIAL CERTIFICATE
[Date]
Pool No._________________
Amount Financed:__________
Attention:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: CUSTODIAN AGREEMENT, dated as of June 17, 1997 among
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. (the "Purchaser"),
FIRST MERCHANTS ACCEPTANCE CORPORATION,
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Custodian
Ladies and Gentlemen:
In accordance with the provisions of Section 4 of the above-referenced
Custodian Agreement, the undersigned, as Custodian, hereby certifies, subject
to any exceptions noted on an accompanying exception report, that, as to each
Receivable listed in the Schedule of Receivables attached hereto, it has
reviewed the Legal File and has determined that (i) all documents required to
be delivered to it pursuant to Section 2(a) of the Custodian Agreement are in
the Custodian's possession; (ii) the documents set forth in Section 2(a) have
been reviewed by it and appear regular on their face; (iii) it has compared the
following items set forth in each Legal File to the information contained in
the Schedule of Receivables and found no exceptions other than as listed in
this Custodial Certificate: account number; Obligor name; make, model and model
year; Amount Financed; (iv) the signature block of the Receivable contains a
manual ink signature;
C-1
23
(v) the Legal File contains a chain of original and any intervening assignments
of the Receivable and the lien on the related Financed Vehicle from Dealer to
Seller and Seller to blank; (vi) it has received an original executed
Notification of Sale by Seller in the form attached to the Custodian Agreement
as Exhibit A; and (vii) it has received an original executed Consent and copies
of the partial release UCC-3 financing statements executed in connection
therewith. Terms not otherwise defined herein are used as defined in the
above-referenced Custodian Agreement.
The Custodian hereby confirms it is holding such Receivables as bailee and
custodian exclusively for the Purchaser pursuant to the above-referenced
Custodian Agreement.
This Custodial Certificate is not divisible or negotiable. However, you
or an affiliate may transfer this Custodial Certificate by special endorsement
as collateral for a loan or pursuant to a repurchase transaction or to a
third-party Custodian pursuant to a repurchase transaction. Any party that
takes this Custodial Certificate from you or your affiliate by special
endorsement may only transfer it by a second endorsement in your or your
affiliate's favor.
The Custodian will accept and act on instructions with respect to the
Receivables subject hereto upon surrender of this Custodial Certificate at its
office at 311 West Monroe Street, Lower Level B2 Vault, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as
Custodian
By
-------------------------------
Name:
Title:
[Greenwich Capital Financial Products, Inc., by its signature below,
hereby transfers those Receivables set forth on the Notice Schedule attached
hereto to .]
------------------------------------
[GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
C-2
24
By
-------------------------------
Name:
Title:]
C-3
25
SCHEDULE OF RECEIVABLES
26
EXHIBIT D
NOTICE OF BENEFICIAL OWNERSHIP
To:
cc: Greenwich Capital Financial Products, Inc.
From:
Date:
The undersigned hereby acknowledges that as of___________ it is in
possession of each Legal File with respect to the Receivables identified in the
Notice Schedule attached to the Notice to the Custodian, dated [date] from
[transferor] (a copy of which Notice is attached hereto) and it is holding such
Legal Files as bailee of and custodian for [transferee] subject to the terms of
the Custodian Agreement, dated as of June 17, 1997 (the "Custodian Agreement"),
among Greenwich Capital Financial Products, Inc., First Merchants Acceptance
Corporation and ▇▇▇▇▇▇ Trust and Savings Bank. The undersigned will act solely
on the instructions of [transferee] with respect to such Receivables.
No person or entity other than [transferee] may rely or shall be entitled
to rely on this acknowledgment.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as Custodian
By
---------------------------------
Name:
Title:
The undersigned, the transferee of certain Receivables from [transferor]
hereby agrees that it is holding such Receivables subject to the terms and
conditions set forth in the Custodian Agreement.
[Transferee]
D-1
27
By
----------------------------
Name:
Title:
D-2
28
EXHIBIT E
CUSTODIAN CONFIRMATION CERTIFICATE
To:
From:
Date:
The undersigned hereby confirms that as of ______________it is in
possession of each Legal File with respect to the Receivables identified on
Schedule A hereto and that it is holding such Legal Files as bailee of and
custodian for _______________, subject to the terms of the
Custodian Agreement, dated as of June 17, 1997, among Greenwich Capital
Financial Products, Inc., First Merchants Acceptance Corporation and ▇▇▇▇▇▇
Trust and Savings Bank.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as
Custodian
By
--------------------------
Name:
Title:
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
NOTICE TO THE CUSTODIAN
To:
From:
Date:
You are hereby notified that the undersigned has assigned its right, title
and interest in and to the Receivables and the Legal Files related thereto
identified in the Schedule attached hereto (the "Notice Schedule") to
[transferee's name and address] and the undersigned hereby releases all right,
title and interest in and to such Receivables as of _____________________.
You are hereby instructed to hold such Receivables and Legal Files pursuant to
the terms of the Custodian Agreement, dated as of June 17, 1997 among Greenwich
Capital Financial Products, Inc., First Merchants Acceptance Corporation and
▇▇▇▇▇▇ Trust and Savings Bank for the sole and exclusive benefit of [name of
transferee] until instructed otherwise by [the transferee].
By
---------------------------
Name:
Title:
F-1