Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo Bank, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo Bank, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims. (b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date. (c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10. (d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files. (e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders). (f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries. (g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages. (h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture. (i) The Collateral Custodian shall: (i) deliver to the Administrator on or before March 15 of each year, beginning March 15, 2022 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and (ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 15, 2022, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the Closing Date). (j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian: (i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate; (ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and (iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 8 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-N4), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-P3), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-P3)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo BankComputershare Trust Company, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo BankComputershare Trust Company, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 of each year, beginning March 15, 2022 2023 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 15, 20222023, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 4 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2022-P3), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2022-P3), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2022-P1)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo BankComputershare Trust Company, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo BankComputershare Trust Company, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-0000000 00xx Xxxxxx XX, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the P&I Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the P&I Notes (other than the Class XS N Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the P&I Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 of each year, beginning March 15, 2022 2025 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the immediately preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 15, 20222025, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior immediately preceding calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 3 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2024-P4), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2024-P4), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2024-P3)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo BankComputershare Trust Company, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo BankComputershare Trust Company, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-0000000 00xx Xxxxxx XX, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 of each year, beginning March 15, 2022 2025 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the immediately preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 15, 20222025, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior immediately preceding calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 2 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2024-P2), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2024-P2)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo Bank, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo Bank, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the Vault 0000-X0 Xxxxx Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault 0000-X0 Xxxxx Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the Vault 0000-X0 Xxxxx Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault 0000-X0 Xxxxx Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault 0000-X0 Xxxxx Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault 0000-X0 Xxxxx Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 10 of each year, beginning March 1510, 2022 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 10 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 1510, 2022, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 2 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-N1), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-N1)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo BankComputershare Trust Company, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo BankComputershare Trust Company, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 of each year, beginning March 15, 2022 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 15, 2022, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 2 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2022-P2), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2022-P2)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo Bank, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo Bank, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the 2021-P1 Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the 2021-P1 Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the 2021-P1 Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the 2021-P1 Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the 2021-P1 Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the 2021-P1 Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 10 of each year, beginning March 1510, 2022 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 10 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 1510, 2022, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 2 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-P1), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-P1)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo Bank, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo Bank, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received, in which case such Receivable File will include the related title application), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date; provided, that if a Certificate of Title has not been issued with respect to a Financed Vehicle, then (i) not later than the date that is forty-five (45) days after the Closing Date, the Administrator shall provide the Collateral Custodian with a copy (which may be communicated electronically) of an Application for Title and (ii) not later than the date that is one-hundred and eighty (180) days after the Closing Date, the Owner of Record shall Deliver the Certificate of Title for such Financed Vehicle to the Collateral Custodian.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the 2020-P1 Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 92020-105(3) of the UCC such Authoritative Copy in the Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 of each year, beginning March 15, 2022 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 15, 2022, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.P1
Appears in 2 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2020-P1), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2020-P1)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo BankComputershare Trust Company, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo BankComputershare Trust Company, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 of each year, beginning March 15, 2022 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 15, 2022, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 2 contracts
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-P4), Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-P4)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust [Issuing Entity][Grantor Trust] hereby appoints Xxxxx Fargo Bank, National Association[ ], to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian Collateral Custodian hereunder. Xxxxx Fargo Bank, National Association [ ] hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor [Issuing Entity][Grantor Trust], Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received, in which case such Receivable File will include the related title application), together with the Schedule of Receivable relating to such Receivable File no later than the [Initial] [and each Subsequent] Closing Date; provided, that if a Certificate of Title has not been issued with respect to a Financed Vehicle, then (i) the [Administrator] shall provide the Collateral Custodian with a copy (which may be communicated electronically) of an Application for Title and (ii) not later than the date that is [one-hundred and eighty (180)] days after the origination date of such Contract, the Owner of Record shall Deliver the Certificate of Title for such Financed Vehicle to the Collateral Custodian.
(c) The Collateral Custodian shall on or prior to the [Initial] [and each Subsequent] Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The [Grantor Trust, the the] Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity[, the Grantor Trust Trust] or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, [,] [and] the Issuing Entity [and the Grantor Trust Trust] engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, Administrator[,][or] the Issuing Entity [or the Grantor Trust Trust] for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, [Grantor Trust’s, ,] Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, [the Grantor Trust, ,] the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. [None of of][Neither] the Administrator, [,] or the Issuing Entity [or the Grantor Trust Trust] considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, Administrator[,][or] the Issuing Entity [or the Grantor Trust Trust] notifies the Collateral Custodian to the contrary, none of the Administrator, Administrator[,][or] the Issuing Entity [or the Grantor Trust Trust] will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, [the Grantor Trust, ,] each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000[ ], and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity[, or the Grantor Trust Trust] (or its respective custodian) from such Person’s electronic vault partition to the 20[ ]-[ ]Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the 20[ ]-[ ] Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the 20[ ]-[ ] Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the 20[ ]-[ ] Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the 20[ ]-[ ] Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the 20[ ]-[ ] Vault Partition to reflect the name of the Grantor Trust [Issuing Entity][Grantor Trust] as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes [(other than the Class XS Notes) )] are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust [Issuing Entity][Grantor Trust] and pledged by the Grantor Trust [Issuing Entity][Grantor Trust] to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes [(other than the Class XS Notes) )] are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes [(other than the Class XS Notes) )] are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) [The Collateral Custodian shall:
(i) deliver to the Administrator [Administrator] on or before March 15 [10] of each year, beginning March 15[10], 2022 20[ ] (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D [ ] with respect to such calendar year (or, in the case of the first year, since no later than the [Initial] Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and;
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator [Administrator] on or before March 15 [15] (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March [15], 202220[ ], an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the [Initial] Closing Date); and
(iii) [the reports under this Section 2.1(i) shall be delivered on or before April 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each calendar year if the Issuing Entity is not required to file periodic reports under the Exchange Act or any other law, beginning April 15, 20[ ].]
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 1 contract
Samples: Collateral Custodian Agreement (Carvana Receivables Depositor LLC)
Appointment; Duties of the Collateral Custodian. (a) The Grantor Trust hereby appoints Xxxxx Fargo Bank, National Association, to act solely on behalf of the Indenture Trustee and the Secured Parties as collateral custodian hereunder. Xxxxx Fargo Bank, National Association hereby accepts its appointment as Collateral Custodian hereunder, acknowledges that it is bound by the terms and conditions of this Agreement and agrees that it shall hold all Receivable Files Delivered to it or otherwise in its possession pursuant to this Agreement for the benefit of the Indenture Trustee under the terms of this Agreement. The Collateral Custodian hereby agrees not to assert (in its individual capacity or otherwise) any Liens or claims of any kind with respect to the Receivable Files held by it or the related Receivables or any other Collateral and hereby releases and waives any such Liens and claims.
(b) The Administrator shall, on behalf of the Grantor Trust, Deliver or cause to be Delivered to the Collateral Custodian the applicable Receivable Files (except that any such file may not include the Certificate of Title to the extent the Certificate of Title has not been received), together with the Schedule of Receivable relating to such Receivable File no later than the Closing Date.
(c) The Collateral Custodian shall on or prior to the Closing Date, review all of the Receivable Files so Delivered to verify the presence of each item listed in the definition of “Receivable File” with respect to each Receivable and deliver a Document Receipt to the Administrator, the Indenture Trustee and the Servicer. The Administrator shall ensure that the Collateral Custodian is provided with electronic access to the records of the Title Intermediary concerning Certificates of Title that are maintained in electronic form. Wherever in this Agreement it states that the Collateral Custodian has possession of Certificates of Title or Receivable Files, with respect to electronic Certificates of Title, it shall mean that the Collateral Custodian has received information sufficient to perform the verification set forth in this Section 2.1. The Collateral Custodian will rely upon, but cannot be responsible for, verify or confirm, the content or accuracy of any information provided by the Title Intermediary or any other party pursuant to the Transaction Documents (to the extent not explicitly required by the terms of the Transaction Documents). The Grantor Trust, the Administrator and the Issuing Entity hereby certify to the Collateral Custodian that, notwithstanding anything to the contrary in this Agreement, the review contemplated by this Section 2.1(c) (the “Review”) is a review to be performed by the Collateral Custodian solely for the purpose of acknowledging receipt of Receivable Files by the Collateral Custodian from the Issuing Entity, the Grantor Trust or the Servicer. Any Document Receipt related to such Review prepared by the Collateral Custodian and furnished to the Servicer or the Indenture Trustee is produced solely in connection with this purpose. None of the Administrator, the Issuing Entity and the Grantor Trust engaged the Collateral Custodian to perform the Review, produce any Document Receipt or perform any of the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Contracts or Receivable Files provided to the Collateral Custodian by the Administrator, the Issuing Entity or the Grantor Trust for the Review as contemplated by Rule 17g-10 under the Exchange Act. Given the purpose and scope of the Collateral Custodian’s services (including the Review and the delivery of any Document Receipt) under this Agreement and given the Administrator’s, Issuing Entity’s, Grantor Trust’s, Servicer’s and Indenture Trustee’s treatment and use of the Review and the Document Receipts, the Administrator, the Issuing Entity, the Grantor Trust, the Indenture Trustee and the Collateral Custodian agree that the Collateral Custodian’s Review is not understood to be “due diligence services” for purposes of Rule 17g-10. None of the Administrator, the Issuing Entity or the Grantor Trust considers the Review or any Document Receipt to be “due diligence services” for purposes of Rule 17g-10, and unless the Administrator, the Issuing Entity or the Grantor Trust notifies the Collateral Custodian to the contrary, none of the Administrator, the Issuing Entity or the Grantor Trust will treat any Document Receipt as a “third party due diligence report” for purposes of Rule 15Ga-2 under the Exchange Act. The Administrator, the Issuing Entity, the Grantor Trust, each Noteholder, and the Indenture Trustee hereby acknowledge that the Collateral Custodian is relying on this certification for purposes of determining that its Review does not constitute “due diligence services” as defined in Rule 17g-10.
(d) Subject to Section 2.2, the Collateral Custodian shall maintain the tangible Receivable Files which are Delivered to it at the offices of the Collateral Custodian, located at ABS Custody Vault, 1055 10th Ave. SE, MAC X0000-000, Xxxxxxxxxxx, XX 00000, and the Collateral Custodian shall notify the Servicer and the Indenture Trustee by written notice of any change in the location of the Receivable Files.
(e) The parties agree that an Electronic Contract shall be “communicated” within the meaning of Section 9-105(3) of the UCC to the Collateral Custodian upon the transfer of the Authoritative Copy of such Electronic Contract at the direction of the Seller, the Administrator, the Issuing Entity, or the Grantor Trust (or its respective custodian) from such Person’s electronic vault partition to the Vault Partition and acceptance by the Collateral Custodian of such Authoritative Copy into the Vault Partition. The Collateral Custodian shall thereafter “maintain” as within the meaning of Section 9-105(3) of the UCC such Authoritative Copy in the Vault Partition for the purpose of exercising control over the Contracts which are Electronic Contracts pursuant to the terms of this Agreement and shall maintain the Vault Partition so that the E-Vault System will place the Required Legend on each page of any perceivable copy of any Contract that is an Electronic Contract. The Collateral Custodian shall maintain the Vault Partition and each Receivable that is an Electronic Contract such that (i) a watermark on all perceivable renderings of the Authoritative Copy thereof shall read “View of Authoritative Copy,” (ii) a watermark on any copy of a former Authoritative Copy thereof shall read “View of Non-Authoritative Copy,” and (iii) the Required Legend is placed by the E-Vault System on each page of any perceivable rendering thereof. The Collateral Custodian shall cause the Vault Partition to reflect the name of the Grantor Trust as the Owner of Record. Each of the parties hereto agrees that it will not initiate or consent to any revision to the Required Legend or any other identification of the Indenture Trustee as the assignee of any Authoritative Copy without the consent of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders).
(f) The Collateral Custodian shall carry out such policies and procedures in accordance with its customary actions with respect to the handling and custody of the Receivable Files so that the integrity and physical possession of the tangible Receivable Files will be maintained. The Collateral Custodian shall segregate the Receivable Files on its inventory system and will not commingle the physical Receivable Files with any other files of the Collateral Custodian other than those relating to the Seller and its Affiliates and subsidiaries.
(g) All of the Collateral Custodian’s records pertaining to the Receivable Files shall contain an indication that such records and the Receivables which are the subject of such records are owned by the Grantor Trust and pledged by the Grantor Trust to the Indenture Trustee for the benefit of the Secured Parties. The Collateral Custodian hereby waives any and all rights of offset with respect to any and all Receivable Files in the Collateral Custodian’s possession or under its “control,” whether such right of offset arises by contract, operation of law or otherwise. The Collateral Custodian shall hold any tangible Receivable Files (or portions thereof) in its fire rated storage vault under its exclusive custody and control in accordance with customary standards for such custody. If any of the Secured Parties suffers or incurs costs, expenses, losses or damages as a result of the destruction or loss of any of the Receivable Files or any instrument or document comprising part of a Receivable File, the Collateral Custodian shall, (i) at the request of the Indenture Trustee, make any appropriate claim under any bond or insurance, and (ii) to the extent of such Secured Party’s costs, expenses, losses or damages, promptly pay the proceeds thereof to such Secured Party unless the Collateral Custodian has replaced the lost or destroyed items or has otherwise reimbursed such Secured Party for such losses or damages.
(h) The Collateral Custodian shall not deliver physical possession of, or otherwise transfer, assign, pledge, mortgage, convey or dispose of any Receivable Files in its possession or under its control to any Person except (i) as provided in Section 2.2 and (ii) upon termination of duties as Collateral Custodian in accordance with Section 2.9. Notwithstanding the foregoing, at the written request of (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders), the Collateral Custodian shall initiate the Export process and retain copies of reports produced by the E-Vault System that set forth, in reasonable detail, the history, including, the original electronic execution as well as the previous alterations, modification or amendments and the conversion to tangible chattel paper of any such Approved Exported Contract. The Collateral Custodian shall then confirm that it has in its possession a physical Contract for each Contract which was converted into an Approved Exported Contract and confirm the same to the Indenture Trustee in writing, and maintain possession of such Approved Exported Contracts in accordance with the terms of this Agreement or, if (A) the Indenture Trustee (acting at the written direction of the Requisite Noteholders), or (B) if the Notes (other than the Class XS Notes) are no longer outstanding, the Issuing Entity (acting at the written direction of the Majority Certificateholders) shall so instruct the Collateral Custodian in writing, deliver such Approved Exported Contracts as directed by the Indenture Trustee. The reasonable and documented fees, costs and expenses related to such Exporting of the Electronic Contracts (other than any Exporting of Contracts following the termination of the E-Vault Access Agreement either at the election of the Collateral Custodian or due to an event of default with respect to the Collateral Custodian) shall be the obligation of the Issuing Entity and shall be paid in accordance with Section 2.7 of the Indenture.
(i) The Collateral Custodian shall:
(i) deliver to the Administrator on or before March 15 of each year, beginning March 15, 2022 (or, if such date is not a Business Day, the next succeeding Business Day), a report, dated as of December 31 of the preceding calendar year, of its assessment of compliance with the Servicing Criteria specified in Exhibit D with respect to such calendar year (or, in the case of the first year, since no later than the Closing Date), including disclosure of any material instance of non-compliance identified by the Collateral Custodian, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under the Securities Act; and
(ii) cause a firm of registered public accountants that is qualified and independent within the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver to the Administrator on or before March 15 (or, if such date is not a Business Day, the next succeeding Business Day) of each year, beginning March 15, 2022, an attestation report that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange Act, as applicable, of the assessment of compliance with Servicing Criteria with respect to the prior calendar year (or, in the case of the first year, since no later than the Closing Date).
(j) The Collateral Custodian hereby acknowledges and agrees that in the event that the Collateral Custodian shall either be terminated or resign pursuant to Section 2.9, the Collateral Custodian:
(i) shall deliver any Receivable Files (or portions thereof) in possession of the Collateral Custodian to the successor Collateral Custodian appointed pursuant to the terms of this Agreement at such place as the successor Collateral Custodian may reasonably designate;
(ii) shall maintain the Receivable Files and continue in the performance of its duties and the enjoyment of its rights under this Agreement, until the due appointment of a successor Collateral Custodian and the orderly transfer of the Receivable Files to the successor Collateral Custodian; and
(iii) shall maintain all information obtained by it regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, in confidence and shall not disclose any such information to any other Person, unless such disclosure is reasonably incident to the performance of its duties and obligations under this Agreement or is required under any Applicable Law.
Appears in 1 contract
Samples: Collateral Custodian Agreement (Carvana Auto Receivables Trust 2021-N2)
