EXHIBIT 4.4
CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT, dated as of November 1, 1999 (as amended or otherwise
modified from time to time, this "Agreement"), among PF FUNDING II, LLC, as
Transferor, PEOPLEFIRST FINANCE, LLC, as Seller and Servicer, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
AUTO RECEIVABLES OWNER TRUST 1999-1, as Issuer, WILMINGTON TRUST COMPANY, as
Owner Trustee and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Indenture
Trustee and Custodian (the "Indenture Trustee" and the "Custodian").
A. Pursuant to the terms of the Sale and Servicing Agreement dated as of
November 1, 1999 among ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Auto Receivables Owner Trust 1999-1, as
Issuer (the "Issuer"), PF Funding II, LLC, as Transferor, PeopleFirst Finance,
LLC, as Seller and Servicer, Prudential Securities Secured Financing
Corporation, as Depositor, and Norwest Bank Minnesota, National Association, as
Indenture Trustee, Backup Servicer and Custodian (the "Sale and Servicing
Agreement") and each Subsequent Transfer Agreement among the Issuer, the
Transferor, the Seller, the Servicer, the Depositor, the Indenture Trustee, the
Backup Servicer and the Custodian, the Seller will assign to the Transferor all
of its right, title and interest in the Initial Receivables and each Subsequent
Receivable, as applicable.
B. Pursuant to the terms of the Sale and Servicing Agreement and each
Subsequent Transfer Agreement (i) the Transferor will assign all of its right,
title and interest in the Initial Receivables and each Subsequent Receivable to
the Depositor and (ii) the Depositor will assign all of its right, title and
interest in the Initial Receivables and each Subsequent Receivable to the
Issuer.
C. Pursuant to the Indenture dated as of November 1, 1999 between the
Issuer and the Indenture Trustee, the Issuer will pledge to the Indenture
Trustee all of its right, title and interest in the Initial Receivables and each
Subsequent Receivable.
D. The Custodian is a financial institution regulated by the Office of
the Comptroller of the Currency; and
E. Pursuant to terms of the Sale and Servicing Agreement, the Servicer
intends to deliver to the Custodian certain documents specified in this
Agreement (collectively, the "Collateral"), and the Servicer desires the
Custodian take possession of the Collateral as the custodian for, and bailee of,
(i) the Indenture Trustee for the benefit of the Noteholders and the Insurer,
or, (ii) after all unpaid principal and interest on the Notes and all amounts
owing to the Insurer have been paid in full, the Owner Trustee for the benefit
of the Certificateholders, in accordance with the terms and conditions of this
Agreement in order to perfect the security interest of Indenture Trustee or the
Owner Trustee, as applicable; and
The parties, intending to be legally bound, hereby agree as follows:
1. Definitions. Terms not defined in this Agreement shall have the
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respective meanings assigned to them in the Sale and Servicing Agreement or the
Indenture. The following terms shall have the following meanings when used in
this Agreement:
"Authorized Representatives" shall have the meaning set forth in Section
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19.
"Certification" has the meaning set forth in Section 3.
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"Collateral" has the meaning set forth in the Recitals hereto.
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"Custodian's Receivable Files" means, with respect to a Financed Vehicle,
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those documents listed in Section 2 of this Agreement that are delivered to the
Custodian and all documents subsequently delivered to the Custodian pursuant to
the last sentence of Section 2.
"Cut-Off Date" means the Initial Cutoff Date and any Subsequent Cutoff
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Date, as applicable.
"Deficiency" means a failure of a document to correspond to the information
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on the Schedule of Receivables or the absence of a required document from a
Custodian's Receivable File pursuant to Section 2.
"Insurance Policy" means with respect to a Contract and Financed Vehicle,
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any insurance policy required to be maintained by the Obligor that covers
physical damage to and theft of the Financed Vehicle or any liability arising
out of the use of such Financed Vehicle.
"Sale and Servicing Agreement" has the meaning assigned to such term in the
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Recitals hereto.
"Schedule of Receivables" means the schedule of Receivables to be delivered
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to the Custodian on the date of delivery to the Custodian of the Custodian's
Receivable Files, in both hard copy and floppy disk, to be annexed hereto as
Exhibit 5 such schedule setting forth the following information with respect to
each Receivable:
(i) the loan number and name of the related Obligor;
(ii) the original principal amount;
(iii) the related Cutoff Date;
(iv) the principal amount outstanding as of the related Cutoff Date;
(v) the interest rate (APR);
(vi) the original term to maturity;
(vii) the remaining term to maturity as of the related Cutoff Date; and
(viii) the day of the month on which the scheduled monthly payment of
principal and interest are required to be made.
2. Delivery of Custodian's Receivable Files. The Servicer hereby
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certifies that it shall deliver and release to the Custodian as custodian for,
and bailee of (i) the Indenture Trustee for the benefit of the Noteholders and
the Insurer, or, (ii) after all unpaid principal and interest on the Notes and
all amounts owing to the Insurer have been paid in full, the Owner Trustee for
the benefit of the Certificateholders, the following documents pertaining to
each of the Receivables identified in a Schedule of Receivables, a copy of which
Schedule of Receivables shall be provided to the Custodian, in a form acceptable
to the Custodian, on computer readable disk or via electronic transfer by the
Servicer:
(a) each executed cancelled check for the related Contract;
(b) a copy of the Note and Security Agreement for such Contract;
(c) the original certificate of title or, if not yet received,
evidence that an application therefor has been submitted with the appropriate
authority, a guaranty of title from a dealer or such other
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document (as used in the applicable jurisdiction) that the Servicer shall on
file in accordance with the Servicer's customary procedures, evidencing the
security interest of the originator;
(d) the originals of all assumption, consolidation, extension,
modification or waiver agreements, if any, relating to such Receivable; and
(e) any other documents that the Servicer shall keep on file, in
accordance with its customary procedures, or reasonably required by the Issuer,
from time to time to be kept on file, relating to a Receivable, the related
Obligor or the related Financed Vehicle.
The Servicer hereby certifies that it shall deliver to the Custodian an
electronic copy of the credit application by the related obligor via electronic
transfer.
The Custodian shall be entitled to rely upon each Schedule of Receivables
provided by the Servicer as the conclusive schedule in its review, pursuant to
Sections 3 and 17(b) hereof, of the Receivable Files delivered to it by the
Servicer. From time to time, the Servicer shall forward to the Custodian for
inclusion in the appropriate Custodian's Receivable File any additional original
loan documents evidencing any assumption, consolidation, extension, modification
or waiver of a Receivable approved by the Servicer.
3. Certification. Within two (2) Business Days after the delivery to the
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Custodian of the Custodian's Receivable Files (or within such shorter period of
time as the Custodian shall agree), the Custodian shall deliver to the Indenture
Trustee, a certification (the "Certification"), in substantially the form
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annexed as Exhibit 1, to the effect that (except as described on the attached
exception report) the Custodian has received a Custodian's Receivable File for
each Receivable listed on the related Schedule of Receivables and it has
received (i) all documents required to be delivered to it pursuant to Section 2
of this Agreement in its possession, (ii) such documents have been reviewed by
it and have not been mutilated, damaged, torn or otherwise physically altered
and relate to such Receivable identified on the Schedule of Receivables, (iii)
based on its examination and only as to the foregoing documents, the information
set forth in items (i), (ii), (v) and (vi) of the definition of Schedule of
Receivables respecting such Receivable accurately reflects the information on
the Schedule of Receivables and (iv) based on its examination, the Contract is
an executed original counterpart. The Custodian shall include in the
Certification any Deficiencies revealed in such review attached as an exception
report to the Certification. The Custodian shall not be required to review the
content (except to the extent necessary to certify to its presence or absence)
of any such document in order to deliver the Certification. The Custodian shall
be under no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that they are genuine,
enforceable, or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
4. Deficiencies in Custodian's Receivable Files. (a) If the Certification
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discloses that any of the documents enumerated in Section 2 are missing or
discloses any Deficiencies in the documents included in any Custodian's
Receivable Files delivered to the Custodian, then the Indenture Trustee shall
promptly notify the Custodian, with a copy to the Servicer, in the form of
Exhibit 4, that (1) the Servicer shall deliver the missing documents noted in
the Certification to the Custodian within ten (10) calendar days of the date of
such notice, (2) the Indenture Trustee has waived the Deficiencies noted in the
Certification, (3) the Servicer shall cure the Deficiencies within ten (10)
calendar days of the date of such notice, or (4) the Servicer shall repurchase
such Receivable in accordance with the terms of the Sale and Servicing
Agreement.
(b) If the Indenture Trustee's notice pursuant to Section 4(a)
above states that the Servicer shall take either of the actions specified in
clauses (1) or (3) of subsection (a) above and the
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Servicer fails to take such actions within ten (10) calendar days of the date of
such notice, then the Custodian shall notify the Indenture Trustee and the
Servicer of such failure and release or retain the deficient Custodian's
Receivable File in accordance with the written instructions of the Indenture
Trustee in the form of Exhibit 4.
(c) If the Indenture Trustee's notice pursuant to Section 4(a)
above states that the Servicer shall take the actions specified in clause (4) of
subsection (a) above, then the Custodian shall return the deficient Custodian's
Receivable File to the Servicer upon repurchase of the related Receivable.
(d) Within ten (10) calendar days after receipt by the Custodian
of any additional documents pursuant to Section 4(a), the Custodian shall review
such documents and deliver to the Indenture Trustee and the Servicer an
exception report listing any Deficiencies with respect to such documents. If the
notification shall indicate any remaining Deficiencies with respect to such
additional documents, the provisions of this Section 4 shall again be followed.
Within two (2) Business Days of the last Business Day of each calendar month,
the Custodian shall deliver to the Indenture Trustee and the Servicer a revised
exception report with respect to all of the Custodian's Receivable Files. If the
revised exception report shall indicate any remaining Deficiencies in any of the
Custodian's Receivable Files, the provisions of this Section 4 shall again be
followed.
5. Obligations of the Custodian. (a) The Custodian shall segregate and
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maintain continuous custody of all items constituting the Custodian's Receivable
Files in secure, fire-resistant facilities in accordance with its customary
standards for such custody. The Custodian makes no representations as to and
shall not be responsible to verify (i) the validity, legality, enforceability,
sufficiency, due authorization or genuineness of any document in each
Custodian's Receivable File or of any of the Receivables or (ii) the
collectibility, insurability, effectiveness or suitability of any Receivable.
(b) With respect to the documents constituting each Custodian's
Receivable File that are delivered to the Custodian, the Custodian shall (i) act
exclusively as the custodian for, and the bailee of, the Indenture Trustee on
behalf of the Noteholders and the Insurer and the Owner Trustee on behalf of the
Certificateholders, (ii) hold all documents constituting such Custodian's
Receivable File received by it for the exclusive use and benefit of the
Indenture Trustee, and (iii) make disposition thereof only in accordance with
the terms of this Agreement or with written instructions furnished by the
Indenture Trustee.
(c) In the event that (i) the Indenture Trustee or the Custodian
shall be served by a third party with any type of levy, attachment, writ or
court order with respect to any Custodian's Receivable File or a document
included within a Custodian's Receivable File or (ii) a third party shall
institute any court proceeding by which any Custodian's Receivable File or a
document included within a Custodian's Receivable File shall be required to be
delivered otherwise than in accordance with the provisions of this Agreement,
the party or parties receiving such service shall promptly deliver or cause to
be delivered to the other parties to this Agreement copies of all court papers,
orders, documents and other materials concerning such proceedings. The Custodian
shall continue to hold and maintain all the Custodian's Receivable Files that
are the subject of such proceedings pending a final order of a court of
competent jurisdiction permitting or directing disposition thereof. Upon final
determination of such court, the Custodian shall dispose of such Custodian's
Receivable File or a document included within such Custodian's Receivable File
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 such proceedings shall be borne by the Issuer.
6. Release of Custodian's Receivable File. From time to time and as
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appropriate for the foreclosure or servicing of any of the Receivables, the
Custodian is hereby authorized, upon receipt of a
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written request of the Servicer acknowledged by the Indenture Trustee in
substantially the form annexed as Exhibit 2 (a "Request for Release and Receipt
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of Documents"), to release to the Servicer by the close of business on the
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second Business Day following such request, the related Custodian's Receivable
File or the documents from a Custodian's Receivable File set forth in such
request and receipt. All documents so released to the Servicer shall be held by
the Servicer in trust for the benefit of the Indenture Trustee in accordance
with the Sale and Servicing Agreement. The Servicer shall return to the
Custodian each and every document previously requested from the Custodian's
Receivable File when the Servicer's need therefore in connection with such
foreclosure or servicing no longer exists, unless the Receivable shall be
liquidated, in which case, upon receipt of a certification to this effect from
the Servicer to the Custodian acknowledged by the Indenture Trustee in
substantially the form annexed as Exhibit 2, the Servicer's prior receipt shall
be returned by the Custodian to the Servicer. The Indenture Trustee agrees to
acknowledge, within one Business Day of receipt, any Request for Release and
Receipt of Documents properly completed and submitted by the Servicer, and not
unreasonably to withhold any such acknowledgment.
7. Release Upon Redelivery or Payment. Upon the redelivery of any
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Receivable pursuant to the Sale and 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 and Receipt of Documents executed by the Servicer and
acknowledged by the Indenture Trustee, the Custodian shall promptly release the
Custodian's Receivable File to the Servicer.
8. Fees and Expenses of the Custodian. It is understood that the Custodian
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will charge the Servicer such fees for its services, and shall be entitled to
reimbursement from the Issuer for expenses, under this Agreement as are set
forth on the separate fee letter submitted to the Issuer by the Custodian.
9. Examination of Custodian's Receivable Files. Upon reasonable prior
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written notice to the Custodian (but no less than one Business Day), the
Indenture Trustee and the Insurer and their respective authorized
representatives, will be permitted during the Custodian's normal business hours
to examine the Custodian's Receivable Files, documents, records and other papers
in the possession, or under the control, of the Custodian relating to any or all
of the Receivables.
10. Transfer of Custodian's Receivable Files Upon Termination. If the
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Custodian is furnished with written notice and satisfactory evidence from the
Indenture Trustee that the Trust has been terminated, the Custodian shall, upon
written request of the Indenture Trustee release to such Persons as the
Indenture Trustee shall designate such Custodian's Receivable Files relating to
such Receivables as the Indenture Trustee shall request and the Custodian shall
endorse the Receivable contracts only as, and if, the Indenture Trustee shall
request in writing.
11. Insurance of the Custodian. The Custodian shall, at its own expense,
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maintain at all times during the term of this Agreement and keep in full force
and effect (a) fidelity insurance, (b) theft of documents insurance, and (c)
forgery insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, as are customary for similar insurance
typically maintained by banks that act as custodian in similar transactions.
12. Periodic Statements. The Custodian by electronic transfer shall provide
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monthly to the Indenture Trustee a list of all the Receivables for which the
Custodian holds a Custodian's Receivable File pursuant to this Agreement. Such
list shall include the loan number and name of the related Obligor and may be in
the form of a copy of the Schedule of Receivables with manual deletions to
specifically denote any Receivables redelivered since the date of this
Agreement.
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13. Copies of Documents. Within ten days after the written request and at
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the expense of the Servicer, the Custodian shall provide the Indenture Trustee
with copies of the documents in the Custodian's Receivable Files.
14. Resignation by and Removal of the Custodian: Successor Custodian. (a)
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The Custodian may at any time resign and terminate its obligations under this
Agreement upon at least thirty (30) days prior written notice to the Servicer,
Insurer and Indenture Trustee. Promptly after receipt of notice of the
Custodian's resignation, the Controlling Party shall appoint, by written
instrument, a successor custodian, subject to prior written approval by the
Insurer. If the Controlling Party fails to appoint a successor within 30 days,
the Controlling Party shall appoint a successor custodian. If both the Servicer
and the Controlling Party fail to appoint a successor custodian pursuant to the
terms hereof, the Custodian may petition a court of competent jurisdiction to
appoint a successor custodian. One original counterpart of such instrument of
appointment shall be delivered to the Servicer, Insurer and Indenture Trustee
and the successor custodian.
(b) The Controlling Party, with or without cause, upon at least
thirty (30) days' written notice to the Custodian, may remove and discharge the
Custodian (or any successor custodian thereafter appointed) from the performance
of its obligations under this Agreement. A copy of such notice shall be
delivered to each of (i) the Servicer, (ii) if the Insurer is the Controlling
Party, the Indenture Trustee and the Owner Trustee or (iii) if the Indenture
Trustee is the Controlling Party, the Owner Trustee. Promptly after the giving
of notice of removal of the Custodian, the Controlling Party shall appoint, by
written instrument, a successor custodian reasonably acceptable to the Servicer.
One original counterpart of such instrument of appointment shall be delivered to
each of the Servicer, and to each of the Custodian and the successor custodian.
(c) No resignation or removal of the Custodian and no
appointment of a successor custodian under this Section 15 shall become
effective until the acceptance of a successor custodian hereunder.
(d) In the event of any such resignation or removal, the
Custodian shall promptly transfer to the successor custodian, as directed in
writing by the Controlling Party, all of the Custodian's Receivable Files being
administered pursuant to this Agreement.
15. Indemnity. The Servicer agrees to indemnify and hold harmless the
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Custodian against any and all claims, losses, liabilities, damages or expenses
(including, but not limited to, attorneys' fees, court costs and costs of
investigation) (Collectively, "Losses") of any kind or nature whatsoever arising
out of or in connection with this Agreement that may be imposed upon, incurred
by or asserted against the Custodian; provided, however, that this Section shall
not relieve the Custodian from liability for its willful misfeasance, bad faith
or gross negligence. The Custodian hereby acknowledges that if it, in bad faith,
fails to follow the express terms of this Agreement which results in a loss or
liability to the Issuer, that shall be deemed to constitute gross negligence on
the part of the Custodian hereunder except insofar as any such failure may be
excused (a) by the provisions of Section 17 hereof or (b) by the need for the
Custodian to follow any contrary orders or, instructions received by it from any
court having jurisdiction, Federal or State banking authorities or other
government or regulatory bodies having jurisdiction over the Custodian. The
provisions of this Section 16 shall survive the resignation or removal of the
Custodian and the termination of this Agreement.
16. Limitation of Liability. (a) The Custodian shall not be liable to the
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Issuer, Servicer, Insurer, Indenture Trustee, Owner Trustee, Noteholders and
Certificateholders or any other Person with respect to any action taken or not
taken by it in good faith in the performance of its obligations under this
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Agreement. The obligations of the Custodian shall be determined solely by the
express provisions of this Agreement. No representation, warranty, covenant,
agreement, obligation or duty of the Custodian shall be implied with respect to
this Agreement or the Custodian's services hereunder.
(b) In the Custodian's review of documents pursuant to Section 3 of
this Agreement, the Custodian shall be under no duty or obligation to inspect,
review or examine the Custodian's Receivable Files to determine that the
contents thereof are genuine, enforceable or appropriate for the represented
purpose or that they have been actually recorded or that they are other than
what they purport to be on their face.
(c) The Custodian may rely, and shall be protected in acting or
refraining to act, upon and need not verify the accuracy of, any (i) oral
instructions from any Person the Custodian believes to be authorized to give
such instructions, who shall only be, with respect to the Servicer, Owner
Trustee, Indenture Trustee and Insurer, a Person whom the Custodian believes in
good faith to be Authorized Representatives, and (ii) any written instruction,
notice, order, request, direction, certificate, opinion or other instrument or
document believed by the Custodian to be genuine and to have been signed and
presented by the proper party or parties, which, with respect to the Controlling
Party, Servicer and Indenture Trustee, shall mean signature and presentation by
Authorized Representatives whether such presentation is by personal delivery,
express delivery or facsimile.
(d) The Custodian may consult with counsel nationally recognized in
the area of commercial transactions and with regard to legal questions arising
out of or in connection with this Agreement, and the advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, omitted or suffered by the Custodian in reasonable reliance,
in good faith, and in accordance therewith.
(e) No provision of this Agreement shall require the Custodian to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties under this Agreement if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity is not
reasonably assured to it.
(f) The Custodian shall not be responsible or liable for, and makes no
representation or warranty with respect to, the validity, adequacy or perfection
of any lien upon, or security interest in, any Receivables or Custodian's
Receivable Files.
17. Term of Agreement. This Agreement shall be terminated upon (a) the
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final payment or other liquidation (or advance with respect thereto) of the last
Receivable in the Custodian's Receivable Files, (b) the disposition of all
property acquired upon foreclosure of any Receivable in the Custodian's
Receivable Files, and (c) the termination of the Indenture.
If any of the circumstances described in clause (a), (b) or clause (c) of
this Section 17 shall occur, promptly after written notice from the Servicer to
such effect, all documents remaining in the Custodian's Receivable Files shall
be delivered to, or at the direction of, the Servicer.
18. Authorized Representatives. The names of the officers of the Servicer,
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Indenture Trustee, Owner Trustee and the Insurer who are authorized to give and
receive notices, requests and instructions and to deliver certificates and
documents in connection with this Agreement on behalf of such parties
("Authorized Representative") are set forth on Exhibit 3, along with the
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specimen signature of each such officer. From time to time, the Owner Trustee,
Indenture Trustee, Insurer and Servicer may, by delivering to the Custodian a
revised exhibit, change the information previously given, but the Custodian
shall be entitled to rely conclusively on the last exhibit until receipt of a
superseding exhibit.
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19. Notices. All demands, notices and communications relating to this
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Agreement shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, return receipt requested, or by
overnight courier, or, if by other means, when received by the other party or
parties at the address shown below, or such other address as may hereafter be
furnished to the other party or parties by like notice. Any such demand, notice
or communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee (as evidenced, in the
case of registered or certified mail, by the date noted on the return receipt).
If to the Servicer:
PeopleFirst Finance, LLC
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Phone Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
If to the Custodian:
Norwest Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, MAC N9311-161
Attention: Corporate Trust Services - Asset Backed Administration
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Insurer:
Financial Security Assurance Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Transaction Oversight Department
Re: PeopleFirst
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇; (▇▇▇) ▇▇▇-▇▇▇▇
If to the Indenture Trustee:
Norwest National Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, MAC N9311-161
Attention: Corporate Trust Services - Asset Backed Administration
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Owner Trustee:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: Corporation Trust Administration
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
20. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of New York without regard to conflict of
laws applied in the State of New York.
21. Assignment. No party to this Agreement may assign its rights or
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delegate its obligations under this Agreement without the express written
consent of the other parties, except as otherwise set forth in this Agreement.
22. Counterparts. For the purpose of facilitating the execution of this
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Agreement and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed to be an original
and together shall constitute and be one and the same instrument.
23. Headings. The Section headings are not part of this Agreement and
--------
shall not be used in its interpretation.
24. Use of Words. The definitions set forth in this Agreement include both
------------
the singular and plural.
25. Transmission of Custodian's Receivable Files. Written instructions as
---------------------------------------------
to the method of shipment and shipper(s) the Custodian is directed to utilize in
connection with transmission of the Custodian's Receivable Files and loan
documents in the performance of the Custodian's duties hereunder shall be
delivered by the Servicer to the Custodian prior to any shipment of any
Custodian's Receivable Files and loan documents hereunder. The Servicer will
arrange for the provision of such services at its sole cost and expense (or, at
the Custodian's option, reimburse the Custodian for all costs and expenses
incurred by the Custodian consistent with such instructions) and will maintain
such insurance against loss or damage to Custodian's Receivable Files and loan
documents as the Servicer seems appropriate. Without limiting the generality of
the provisions of Section 16 above, it is expressly agreed that in no event
shall the Custodian have any liability for any losses or damages to any Person,
including, without limitation, the Servicer or the Issuer or Insurer, arising
out of actions of the Custodian consistent with instructions of the Servicer,
Issuer or Insurer.
26. Limitation of Liability.
-----------------------
It is expressly understood and agreed by the parties hereto that (a) this
Custodial Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Owner Trustee of the ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Auto Receivables Owner Trust 1999-1, in the exercises of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company, but is made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any Person claiming by,
through or under the parties hereto and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Trust under this Custodial Agreement or any other related documents.
[Signature Page Follows]
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
PEOPLEFIRST FINANCE, LLC,
as Servicer
By: ____________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Custodian
and Indenture Trustee
By: ____________________________
Name: ________________________
Title: _______________________
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ AUTO RECEIVABLES
OWNER TRUST 1999-1, by WILMINGTON
TRUST COMPANY, not in its individual
capacity, but solely as Owner Trustee
By: ____________________________
Name: ________________________
Title: _______________________
10
EXHIBIT 1
---------
CERTIFICATION
-------------
[Indenture Trustee]
Re: Custodial Agreement (the "Custodial Agreement") dated as of
November 1, 1999, among PeopleFirst Finance, LLC, as Servicer,
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Auto Receivables Owner Trust 1999-1 and
Norwest Bank Minnesota, National Association ("Indenture Trustee"
and "Custodian")
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 3 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that as
to each Receivable listed on the Schedule of Receivables (other than any
Receivable paid in full or any Receivable listed on the exception report
attached hereto) it has reviewed the Custodian's Receivable Files and has
determined that (i) all documents required to be delivered to it pursuant to
Section 2 of the Custodial Agreement are in its possession; (ii) such documents
have been reviewed by it and have not been mutilated, damaged, torn or otherwise
physically altered and relate to such Receivable identified on the Schedule of
Receivables; (iii) based on its examination and only as to the foregoing
documents, the information set forth in items (i) (ii) (v) and (vi) of the
definition of Schedule of Receivables respecting such Receivable accurately
reflects the information on the Schedule of Receivables; and (iv) based on its
examination, the Contract is an executed original counterpart. The Custodian
makes no representations as to and shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any of the documents contained in each Custodian's Receivable
File or of any of the Receivables or (ii) the collectability, insurability,
effectiveness or suitability of any such Receivable.
Capitalized words used herein shall have the respective meanings assigned
to them in the above-captioned Custodial Agreement.
Norwest Bank Minnesota, National Association, as
Custodian
By:___________________________________
Name:______________________________
Title:_____________________________
EXCEPTION REPORT
----------------
EXHIBIT 2
---------
REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS
--------------------------------------------
Norwest Bank Minnesota,
National Association
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services -
Asset Backed Administration
Re: Custodial Agreement (the "Custodial Agreement") dated as of
November 1, 1999, among PeopleFirst Finance, LLC, as Servicer,
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Auto Receivables Owner Trust 1999-1 and
Norwest Bank Minnesota, National Association ("Indenture Trustee
and "Custodian")
-----------------------------------------------------------------
In connection with the administration of the Receivables held by you as the
Custodian, we request the release of the (Custodian's Receivable File/specify
documents) for the Receivable described below, for the reason indicated.
Obligor's Name, Address & Zip Code:
----------------------------------
Receivable Number:
------------------
Reason for Requesting Documents (check one)
-------------------------------
1. Receivable Paid in Full
2. Receivable Redelivered Pursuant to Section 7 of the Custodial
Agreement
3. Receivable Liquidated by __________
4. Receivable in Foreclosure
5. Other (explain)
If item 1, 2 or 3 above is checked, and if all or part of the Custodian's
Receivable 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 6 above is checked, upon our return of all of the above
document to you as the Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form.
PEOPLEFIRST FINANCE, LLC, as Servicer
By:_________________________________
Name:____________________________
Title:___________________________
Date:____________________________
ACKNOWLEDGED:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Indenture Trustee
By:_________________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
DOCUMENTS RETURNED TO THE CUSTODIAN
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Custodian
By:_________________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
2
EXHIBIT 3
---------
AUTHORIZED REPRESENTATIVES
--------------------------
a) of PeopleFirst Finance, LLC
Name Specimen Signature
---- ------------------
1.
2.
3.
4.
5.
b) of Wilmington Trust Company
Name Specimen Signature
---- ------------------
1.
2.
3.
4.
c) of Norwest Bank Minnesota, National Association
Name Specimen Signature
---- ------------------
1.
2.
3.
4.
d) of Financial Security Assurance Inc.
Name Specimen Signature
---- ------------------
1.
2.
3.
4.
4
EXHIBIT 4
---------
NOTIFICATION IN EVENT OF DEFICIENCY
IN CUSTODIAN'S RECEIVABLE FILES
-------------------------------
TO: Norwest Bank Minnesota,
National Association
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services -
Asset Backed Administration
Re: Custodial Agreement (the "Custodial Agreement") dated as of
November 1, 1999, among PeopleFirst Finance, LLC, as Servicer,
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Auto Receivables Owner Trust 1999-1 and
Norwest Bank Minnesota, National Association ("Indenture Trustee"
and "Custodian")
-----------------------------------------------------------------
The undersigned, in accordance with Section 4 of the Custodial Agreement,
hereby notifies the Custodian that:
[_] The Servicer shall deliver the following documents to the Custodian within
ten (10) calendar days from the date hereof.
(list of documents)
[_] The Indenture Trustee has waived the Deficiencies noted in the
Certification.
[_] The Servicer shall cure the Deficiencies within ten (10) calendar days from
the date hereof.
[_] The Servicer shall repurchase the deficient Receivable.
[_] The Custodian shall release the deficient Custodian's Receivable File to
the Servicer.
[_] The Custodian shall retain the deficient Custodian's Receivable File.
Capitalized words used herein shall have the respective meanings assigned
to them in the above-captioned Custodial Agreement.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:__________________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
6
EXHIBIT 5
---------
SCHEDULE OF RECEIVABLES
-----------------------