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Exhibit 10.10
CUSTODIAN AGREEMENT
This Custodian Agreement ("Agreement") is entered into by and among T &
W Financial Corporation ("T & W"), T & W Funding Company VI, L.L.C. (the
"Company"), T & W Funding Company I, L.L.C. (the "Transferor"), Seafirst Bank
N.A., a national banking association and CoreStates Bank, N.A., a national
banking association (individually, a "Holder" and collectively, the "Holders"),
and Norwest Bank Minnesota, National Association as custodian of the various
lease contracts under this Agreement (the "Custodian"), on this 4th day of
February, 1997.
RECITALS
WHEREAS, the Holders are holding certain lease contracts listed on
Schedule A hereof (the "Lease Contracts"); and
WHEREAS, the Custodian is willing to hold the Lease Contracts on behalf
of the Holders; and
WHEREAS, simultaneously with the execution and delivery of this
Agreement, each Holder is delivering to the Custodian a certain Release and
Extinguishment of Rights to Certain Collateral by each Holder for the benefit of
the Transferor, the Company, and, with respect to Seafirst Bank N.A., T & W,
dated as of February 7, 1997 (each, a "Release Agreement"), to be held by the
Custodian in escrow in accordance with the terms hereof;
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
CUSTODY OF LEASE CONTRACTS
Section 1.1. Custodian to Act as Agent; Acceptance of Lease Contracts.
Upon the delivery by a Holder of its respective Lease Contracts and its Release
Agreement to the Custodian, the Custodian shall issue to such Holder in exchange
therefor, a receipt (the "Receipt") in the form attached hereto as Exhibit A. By
the issuance of the Receipt, the Custodian, as the duly appointed agent of the
Holder delivering the related Lease Contracts, shall be deemed to have
acknowledged receipt of such Lease Contracts, subject to the verification
provisions in the Receipt for each individual contract, and to have declared
that it holds and will hold such Lease Contracts and the related Release
Agreement as agent for such Holder from the
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date of such receipt to the earlier of (i) the confirmation by such Holder of
the receipt of the funds as described in Section 1.3 hereof or (ii) the request
by such Holder to return its Lease Contracts and Release Agreement (the "Release
Date"). During the period prior to the Release Date (the "Review Period"), the
Custodian shall not release any Lease Contracts or any portion thereof to any
person other than to the Holder which delivered such Lease Contracts, and the
Custodian shall allow such Holder and its agents access to its respective Lease
Contracts during such period for purposes of its or their review thereof. In
addition, the Custodian shall not release or deliver a Release Agreement prior
to the Release Date. The Custodian shall use due care in the custody of the
Lease Contracts and the Release Agreements as is customary in the banking
industry and in the Custodian's care of chattel paper pledged for its benefit.
Section 1.2. Custodian's Review of Lease Contracts. Not later than five
(5) business days following its receipt of the final delivery of Lease
Contracts, the Custodian shall (a) verify that each of said contracts delivered
are listed on Schedule A attached hereto, (b) notify T & W, the Transferor and
the Company of any contracts listed on Schedule A which are not in the
Custodian's possession, and (c) return any contract in the Custodian's
possession which is not listed on Schedule A to the respective Holder which
delivered the same. Each Holder shall be entitled to have one or more of its or
their representatives present during the time the Custodian is performing such
verification or otherwise handling the Lease Contracts.
Section 1.3. Release of Lease Contracts. A Holder may, at any time
during the Review Period, upon written request, require that the Custodian
release any or all of the Lease Contracts delivered by such holder to such
Holder or its designee. Upon the receipt by a Holder of its "Discharge Amount",
as defined in its Release Agreement, and telephonic notice by the Holder to the
Custodian the Custodian is authorized to release such Release Agreement and
deliver it to the Transferor and the Company on behalf of such Holder and the
respective Lease Contracts shall be effectively released from this Custodian
Agreement. Each Holder agrees to notify the Custodian immediately upon receipt
of the Discharge Amount. When the Release Date has occurred with respect to each
Holder, this Agreement shall terminate other than the Custodian's rights to
indemnification hereunder.
ARTICLE II
CONCERNING THE CUSTODIAN
Section 2.1. Merger or Consolidation of Custodian. Any Person into which
the Custodian may be merged or converted or with which it may be consolidated,
or any Person resulting from any merger, conversion or consolidation to which
the Custodian shall be a party, or any Person succeeding to the business of the
Custodian, shall be the successor of the Custodian hereunder without any further
act by the Custodian.
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Section 2.2. Representations of the Custodian. The Custodian hereby
represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $100,000,000 and is qualified to do business in the jurisdiction in
which it will hold any Lease Contract.
Section 2.3. Custodian's Rights. (a) The Custodian may rely on and shall
be protected in acting upon any certificate, instrument, opinion, notice,
letter, telegram or other document delivered to it and which in good faith it
reasonably believes to be genuine and which has been signed by the proper party
or parties. The Custodian may rely conclusively on and shall be protected by in
acting upon (i) the written instructions of any designated officer of a Holder
or (ii) the verbal instructions of a Holder including without limitation, any
verbal instructions received pursuant to Section 1.3 hereof.
(b) The Custodian may consult counsel satisfactory to it and the opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion of such counsel.
(c) The Custodian shall not be liable for any error of judgment, or for
any act done or step taken or omitted by it, in good faith, or for any mistakes
of fact or law, or for anything which it may do or refrain from doing in
connection herewith, except in the case of its willful misconduct or negligent
performance or omission.
(d) The Custodian makes no warranty or representation and shall have no
responsibility (except as expressly set forth in this Agreement) as to the
completeness, validity, sufficiency, value, genuineness, ownership or
transferability of the Lease Contracts, and will not be required to and will not
make any representations as to the validity or value (except as expressly set
forth in this Agreement) of any of the Lease Contracts. The Custodian shall not
be obligated to take any legal action hereunder which might in its judgment
involve any expense or liability unless it has been furnished with reasonable
indemnity.
(e) T & W shall indemnify and hold the Custodian harmless from and
against all liabilities, damages, losses, fees (including reasonable attorney's
fees) and costs and expenses incurred by the Custodian as a result of any legal
proceedings or in defending against any action or claim relating to the
performance of its duties hereunder, unless such liabilities, damages, loss,
fees, costs and expenses shall arise from the Custodian's negligence or willful
misconduct. The Custodian's rights to indemnification shall survive the
termination of this Agreement.
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ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1. Notice. Unless otherwise specifically provided, all
notices, requests, consents and demands and other communications required under
this Agreement or pursuant to any other instrument or document delivered
hereunder shall be in writing and may be delivered personally, by telegram or
telex, or by facsimile transmission (with an original forwarded thereafter by
first class mail), or by registered or certified mail, postage prepaid, return
receipt requested, at the addresses specified below (unless changed by the
particular party whose address is stated herein by similar notice in writing to
all other parties hereto), in which case the notice will be deemed delivered
when received:
(a) to T & W Financial Corporation at 0000 Xxxxxxxxx Xxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxxxx X. Price;
(b) to T & W Funding Company I, L.L.C. at 0000 Xxxxxxxxx Xxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxxxx X. Price;
(c) to T & W Funding Company VI, L.L.C. at 0000 Xxxxxxxxx Xxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxxxx X. Price;
(d) to CoreStates Bank, N.A. at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 Attention: Xxxxx Xxxxx;
(e) to Seafirst Bank N.A. at 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxxxx Xxxx; or
(f) to the Custodian at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 Attention: Xxxxxx Xxxxxxxxxx.
Section 3.2. Amendments. No modification or amendment of or supplement
to this Agreement shall be valid or effective unless the same is in writing and
signed by all parties hereto.
Section 3.3. Governing Law. This Agreement shall be deemed a contract
made under the laws of, and to be performed in, the State of Minnesota and shall
be construed and enforced in accordance with and governed by the laws of the
State of Minnesota.
Section 3.4. Counterparts. This Agreement may be executed in any number
of counterparts, and by the different parties hereto on the same or separate
counterparts, each of
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which counterparts, when so executed and delivered shall be deemed to be an
original instrument and all of the counterparts, taken together, shall
constitute one and the same Agreement.
Section 3.5. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
T & W FINANCIAL CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
T & W FUNDING COMPANY VI, L.L.C.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
T & W FUNDING COMPANY I, L.L.C.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
CORESTATES BANK, N.A.
By
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
SEAFIRST BANK N.A.
By
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Custodian
By
Name:
Title:
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EXHIBIT A
RECEIPT FOR LEASE CONTRACTS
Norwest Bank Minnesota, National Association, as Custodian (the
"Custodian") under the Custodian Agreement among the Holders defined therein
(the "Holders") and the Custodian, dated February 5, 1997 (the "Custodian
Agreement"), acknowledges receipt from _______________________ of its Lease
Contracts delivered pursuant to the Custodian Agreement. In accordance with the
Custodian Agreement, the Custodian agrees to (a) verify that each of said
contracts delivered are listed on the respective Schedule attached hereto, (b)
notify T & W Financial Corporation of any contracts listed on Schedule A thereto
which are not in the Custodian's possession, and (c) return any contract in the
Custodian's possession which is not listed on the Schedule A thereto to the
Holder which delivered the same within the time period described therein.
IN WITNESS WHEREOF, I have hereunto executed this Receipt, the ______
day of February, 1997.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By
Name:
Title:
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SCHEDULE A
THE LEASE CONTRACTS
