Custody of Receivables Files (a) In connection with the sale, transfer and assignment of the Receivables and the Other Conveyed Property to the Trust pursuant to this Agreement, the Indenture Trustee hereby revocably appoints the Custodian, and the Custodian hereby accepts such appointment, to act as the agent of the Indenture Trustee as custodian of the following documents or instruments in its possession or in the possession of third party vendors on behalf of the Custodian which will be delivered to the Custodian as agent of the Indenture Trustee on or before the Closing Date (with respect to each Receivable):
(i) the fully executed original of the Contract related to such Receivable (together with any agreements modifying the Receivable, including any extension agreements);
(ii) the original certificate of title (when received) indicating that the Financed Vehicle is owned by the Obligor and subject to the interest of Triad as first lienholder or secured party (including any Lien Certificate received by Triad) or that it has been assigned to Triad as first lienholder or secured party, or, if such original certificate of title has not yet been received, a copy of the application therefor, showing Triad as secured party and otherwise such related documents, if any, that Triad keeps on file in accordance with its customary procedures; and
(iii) in connection with Receivable Files pertaining to retail installment sale contracts, the original credit application, or a copy thereof (collectively, the “Receivable Files”).
(b) Upon payment in full of any Receivable, the Servicer will notify the Custodian pursuant to a certificate of an officer of the Servicer (which certificate will include a statement to the effect that all amounts received in connection with such payments which are required to be deposited in the Collection Account pursuant to Section 4.1 have been so deposited) and will request delivery of the Receivable File to the Servicer. From time to time as appropriate for servicing and enforcing any Receivable, the Custodian will, upon written request of an officer of the Servicer and delivery to the Custodian of a receipt signed by such officer, cause the related Receivable File to be released to the Servicer. The Servicer’s receipt of a Receivable File will obligate the Servicer to return the Receivable File to the Custodian when its need by the Servicer has ceased unless the Receivable is repurchased as described in Section 3.2 or 4.7.
(c) The Custodian, or its third-party vendor, will hold the Receivable Files on behalf of the Indenture Trustee and will maintain such accurate and complete accounts, records and computer systems pertaining to each Receivable File as will enable the Indenture Trustee to comply with the terms and conditions of this Agreement. For so long as Triad is the Custodian, the Custodian will maintain the Receivable Files at (i) its office located at 7▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (ii) with a third-party service provider identified on Schedule D hereto, as it may be modified from time to time by the Custodian with the consent of the Insurer, which will not be unreasonably withheld, or (iii) subject to the prior written consent of the Insurer, so long as no Insurer Default has occurred and is continuing, at such other office as will from time to time be identified to the Indenture Trustee and the Insurer. Each Receivable will be identified on the books and records of the Custodian in a manner that (i) indicates that the Receivables are held by the Custodian on behalf of the Indenture Trustee and (ii) is otherwise necessary, as reasonably determined by the Custodian. So long as Citibank, N.A. is not the Custodian, the Custodian will conduct, or cause to be conducted, periodic physical inspections of the Receivable Files held by it, and of the related accounts, records and computer systems, in such a manner as will enable the Indenture Trustee, the Insurer and the Custodian to verify the accuracy of the Custodian’s inventory and recordkeeping. Such inspections will be conducted at such times, in such manner and by such persons including independent accountants, as the Insurer or the Indenture Trustee may reasonably request and the cost of such inspections will be borne directly by the Custodian, so long as Citibank, N.A. is not the Custodian, and not by the Insurer or the Indenture Trustee, but such inspections are not to take place more than once per year. The Custodian will promptly report to the Insurer and the Indenture Trustee any failure on its part to hold the Receivable Files and maintain its accounts, records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Upon request, the Custodian will, at the expense of the party making such request, make copies or other electronic file records (e.g., diskettes, CDs, etc.) (the “Copies”) of the Receivable Files and will deliver such Copies to the Indenture Trustee and the Indenture Trustee will hold such Copies on behalf of the Issuer Secured Parties.
(d) The Custodian will, subject only to the Custodian’s security requirements applicable to its own employees having access to similar records held by the Custodian, which requirements will be consistent with the practices of an institution that maintains custody of Receivable Files for its own account, and at such times as may be reasonably imposed by the Custodian, permit only the Insurer and the Indenture Trustee or their duly authorized representatives, attorneys or auditors to inspect the Receivable Files and the related accounts, records, and computer systems maintained by the Custodian pursuant hereto at such times as the Insurer or the Indenture Trustee may reasonably request during normal business hours.
(e) The Custodian will be deemed to have received proper instructions with respect to the Receivable Files upon its receipt of written instructions signed by a Responsible Officer of the Indenture Trustee. Such instructions may be general or specific in terms. The Indenture Trustee will provide a copy of any such instructions to the Insurer.
(f) The Custodian will indemnify the Issuer, the Owner Trustee, the Backup Servicer, the Insurer, the Noteholders, the Certificateholders and the Indenture Trustee for any and all liabilities, obligations, losses, damage, payments, costs or expenses of any kind whatsoever (including the fees and expenses of counsel) that may be imposed on, incurred or asserted against such Persons and their respective officers, directors, employees, agents, attorneys and successors and assigns as the result of any act or omission in any way relating to the maintenance and custody by the Custodian or any third-party vendor of the Receivable Files; provided, however, that the Custodian will not be liable for any portion of any such liabilities, obligations, losses, damages, payments, costs or expenses due to the willful misfeasance, bad faith or gross negligence of the Issuer, the Owner Trustee, the Backup Servicer, the Insurer or the Indenture Trustee or the officers, directors, employees and agents thereof. In no event will the Custodian be liable to any third party for acts or omissions of the Custodian other than as specifically set forth in this Section.
