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Exhibit f.15
EXECUTION COPY
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (the "Agreement") dated as of
December 31, 1996, is entered into among SIRROM FUNDING CORPORATION ("SFC"),
SIRROM CAPITAL CORPORATION ("Sirrom"), FIRST TRUST NATIONAL ASSOCIATION ("First
Trust") in its capacity as the "Custodian" and ING BARING (U.S.) CAPITAL
MARKETS, INC., as agent for certain Holders of Notes issued under the Indenture
referred to below (the "Program Agent"). Capitalized terms used herein which are
not otherwise defined herein shall have the meanings assigned to such terms in
the Indenture.
PRELIMINARY STATEMENT
WHEREAS, SFC and Sirrom are parties to that certain Loan Sale
and Contribution Agreement of even date herewith (as amended, modified or
supplemented from time to time, the "Loan Purchase Agreement") pursuant to SFC
may from time to time purchase loans (the "Issuer Loans") from Sirrom.
WHEREAS, SFC as the Issuer, Sirrom as the initial Servicer and
First Trust as Trustee, are parties to that certain Master Trust Indenture and
Security Agreement of even date herewith (as amended, modified or supplemented
from time to time, together with any "Supplements" thereto, the "Indenture")
pursuant to which SFC has pledged, among other things, the Issuer Loans to the
Trustee, for the benefit of the Noteholders.
WHEREAS, SFC has requested that First Trust act as custodian
(the "Custodian") for the purposes of (i) receiving and holding all Loan
Documents relating to all Issuer Loans purchased by SFC from Sirrom from time to
time and (ii) to act as the agent of the Noteholders for the purpose of
perfection under Article 9 of the UCC.
WHEREAS, First Trust is willing to act in such capacity as
Custodian.
NOW, THEREFORE, the parties agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used herein, the following terms
shall have the meanings assigned thereto below:
"Authorized Employee" means any of the employees of the
Program Agent listed on Schedule I hereto and any other employee of the Program
Agent who is hereafter authorized in writing by an existing Authorized Employee
(which authorization must be delivered to SFC and to the Custodian) to act as an
Authorized Employee of the Program Agent hereunder, provided, however, that any
Authorized Employee may send a notice to SFC and the Custodian informing them of
any other Authorized Employee who ceases to be an Authorized Employee.
"Report" has the meaning ascribed to such term in
Section 2.08.
"Report Effective Date" has the meaning ascribed to such term
in Section 2.08.
"Responsible Officer" means, with respect to SFC, the
officers set forth on Exhibit E.
"Termination Date" means that date when the Trustee notifies
the Custodian in writing that the satisfaction and discharge of the obligations
of the Issuer under the Indenture shall have occurred.
ARTICLE II
CUSTODIAN
SECTION 2.01. Designation and Appointment of First Trust as
Custodian. First Trust is hereby designated as, and hereby agrees to perform the
duties and obligations of, the Custodian under and as set forth in this
Agreement. First Trust shall serve as Custodian from the date hereof until the
Termination Date, subject to resignation or removal pursuant to Section 4.05
hereof.
SECTION 2.02. Duties of the Custodian. (a) At all times that
First Trust shall be the Custodian, it shall duly discharge its duties of
receiving and holding the Loan Documents in accordance with this Agreement. As
to any matters not expressly provided for by this Agreement, the Custodian shall
be
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required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the written instructions of the Program
Agent (executed by an Authorized Employee); provided, however, that the
Custodian shall not be required to take any action which is contrary to this
Agreement or applicable law, or which is not reasonably incidental to its duties
and responsibilities under this Agreement or is of a type unrelated to its
business.
(b) First Trust is hereby authorized and empowered, with the
prior written consent of the Program Agent, SFC, Sirrom and the Trustee, to
subcontract with or delegate to any other Person (at the Custodian's expense)
for performance of its duties and obligations as Custodian described in this
Agreement; provided that such other Person shall not become the Custodian
hereunder and the First Trust shall remain liable for the performance of its
duties and obligations as the Custodian pursuant to the terms hereof. The
Program Agent, SFC, Sirrom and the Trustee hereby consent to the appointment by
First Trust of SunTrust Bank, Nashville, N.A. as its subcontractor for the
performance of its duties described herein. Each subcontracting agreement will
be upon such terms and conditions as are not inconsistent with this Agreement.
All compensation payable to a subcontractor under any subcontracting agreement
shall be payable by the Custodian from the fee received by it pursuant to
Section 4.01 hereof or otherwise from its own funds, and neither the Trustee,
Sirrom, SFC nor the Program Agent shall have any obligations, duties or
liabilities of any kind whatsoever under any such subcontracting agreements.
SECTION 2.03. Loan Documents; Agent for Perfection. (a) From
time to time as provided in the Loan Purchase Agreement, the Loan Documents
related to the Issuer Loans shall be delivered by Sirrom to the Custodian. All
such Loan Documents shall be held by the Custodian pursuant to the terms hereof.
The Loan Documents for each Issuer Loan delivered to you must include, among
other things, (i) the original executed promissory note (the "Loan Note")
related to such Issuer Loan, endorsed by SFC (directly on such Loan Note or by
means of an allonge to such Loan Note) as follows: "Pay to the order of First
Trust National Association, as Trustee without recourse" and signed by a
Responsible Officer of SFC, with all prior and intervening endorsements showing
a complete chain of endorsement to SFC, (ii)(A) executed originals of all other
instruments included in the Loan Documents as described on the applicable Loan
Document Transmittal Sheet and (B) executed originals or copies of the loan
agreement and security agreement (which may be in the form
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of a loan and security agreement) and all other Loan Documents described on the
applicable Loan Document Transmittal Sheet. With each delivery of Loan Documents
to the Custodian, Sirrom shall provide the Custodian with a summary of specific
information with respect to each Issuer Loan (a "Loan Document Transmittal
Sheet")(with simultaneous delivery thereof by facsimile to the Trustee and the
Program Agent) substantially in the form of Exhibit A hereto. No later than the
Business Day after receipt thereof, the Custodian shall (i) confirm the
information set forth on each Loan Document Transmittal Sheet, noting thereon
all discrepancies between the information contained thereon and the Loan
Documents related thereto (if any), and (ii) deliver such Loan Document
Transmittal Sheet by facsimile to the Trustee, the Program Agent, SFC and
Sirrom.
(b) In order to perfect the interests of the Noteholders in
the Loan Notes related to Issuer Loans subject to the security interest granted
in the Indenture, the Custodian, acting directly or through its agents, shall
hold the Loan Notes, as agent hereunder for the Noteholders on the terms and
conditions hereinafter set forth.
SECTION 2.04. Removal of Loan Documents. (a) The Program Agent
shall have the unlimited right, upon written notice (by facsimile or otherwise),
which notice shall include a statement explicitly requesting the delivery of all
or any portion of the Loan Documents relating to one or more Issuer Loans,
executed by an Authorized Employee and delivered to the Custodian, with a copy
sent to SFC, Sirrom and the Trustee, to remove all or any portion of the Loan
Documents relating to one or more Issuer Loans from the Custodian.
(b) From time to time, with not less than three Business Days
prior written notice (substantially in the form of Exhibit B-1 hereto) delivered
to the Custodian (with simultaneous delivery thereof by facsimile to the Trustee
and the Program Agent), SFC may request the Custodian to release certain Loan
Documents held by the Custodian to the Servicer; provided, that the Custodian
shall release such Loan Documents only if (i) the Program Agent shall have
notified the Custodian in writing (with simultaneous delivery thereof by
facsimile to the Trustee and SFC) to release such Loan Documents, and (ii) SFC
and Sirrom shall have certified that either (1)(A) the applicable Issuer Loan is
an Ineligible Purchased Loan (as such term is defined in the Loan Purchase
Agreement) and (B) Sirrom has, pursuant to Section 8.02 of the Loan Purchase
Agreement, either (x) substituted a new Eligible Loan therefor and delivered the
Loan
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Documents related thereto to the Custodian or (y) repurchased such Ineligible
Purchased Loan by depositing repurchase price thereof to the Collection Account,
or (2) the release is being requested pursuant to Section 2.06(a) of the
Indenture and all of the conditions precedent to such release have been
satisfied. The right of SFC to request the release of Loan Documents under this
Section 2.04(b) may be withdrawn by the Program Agent at any time by written
notice to the Custodian from an Authorized Employee. Promptly upon the
satisfaction of the conditions precedent to any release of Loan Documents held
by the Custodian (including, without limitation, the receipt by the Program
Agent of the certification described in clause (ii) of the immediately preceding
sentence) the Program Agent shall direct the Custodian to release such Loan
Documents.
(c) From time to time, with not less than three Business Days
prior written notice (substantially in the form of Exhibit B-2 hereto) delivered
to the Custodian (with simultaneous delivery thereof by facsimile to the Trustee
and the Program Agent), the Servicer may request the Custodian to release
certain Loan Documents held by the Custodian to the Servicer; provided, that the
Custodian shall release such Loan Documents only if (i) the Program Agent shall
have notified the Custodian in writing (with simultaneous delivery thereof by
facsimile to the Trustee and the Servicer) to release such Loan Documents, and
(ii) the Servicer shall have certified that either (1)(A) the applicable Issuer
Loan has been paid in full and (B) that all amounts received or to be received
in connection with such payment which are required to be transferred to the
Collection Account in accordance with the terms of the Indenture have been so
transferred or (2) the Servicer has reasonably determined that it is necessary
to take possession of the Loan Documents with respect to such Issuer Loan for
the purpose of foreclosure thereon or further servicing thereof. The right of
the Servicer to request the release of Loan Documents under this Section 2.04(c)
may be withdrawn by the Program Agent at any time by written notice to the
Custodian from an Authorized Employee.
(d) Notwithstanding the requirement for three Business Days
prior written notice to the Custodian in respect to any request for the release
of certain Loan Documents as set forth in clauses (b) and (c) of this Section
2.04, the Custodian agrees to use its reasonable best efforts to accommodate
requests on shorter notice so long as (i) all other conditions precedent to any
such requested release are satisfied prior to such release and (ii) such
requests have not, in the Custodian's sole determination, become regular.
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(e) Other than as described in the this Section 2.04 and as
otherwise required by law, the Custodian shall have no authority to release any
Loan Documents to any Person, including, without limitation, SFC and Sirrom.
SECTION 2.05. Documents held by the Custodian. All Loan
Documents coming into the possession of the Custodian, (a) shall be held by it
in trust for the benefit of the Trustee, on behalf of the Noteholders, and shall
be segregated from all other documents held by the Custodian and placed for
safekeeping in a fireproof vault (or similar safekeeping device) located on its
premises, (b) shall be held by it as agent and bailee on behalf of the Trustee
for the purposes of perfecting the security interest therein of the Trustee, (c)
shall be made available to the Trustee and the Program Agent upon reasonable
prior notification on any Business Day, for inspection or otherwise, upon the
Trustee's or Program Agent's request therefor, and (d) shall be held in a manner
which allows such Loan Documents to be released within two Business Days
following the Custodian's receipt of notice pursuant to the terms set forth in
Section 2.04 above.
SECTION 2.06 No Liens or Encumbrances. The Custodian hereby
agrees not to assert any statutory or possessory liens or encumbrances of any
kind with respect to the Loan Documents held by it, and hereby waives all such
liens and encumbrances.
SECTION 2.07. Maintenance of Records. The Custodian shall
implement and maintain administrative and operating procedures pursuant to which
it shall keep and maintain all records and information necessary to permit the
regular identification of all Loan Documents held or released by it.
SECTION 2.08. Reports; Visitation Rights; Other Information.
(a) The Custodian shall furnish to the Trustee and the Program Agent, not later
than the Monthly Payment Date for each Collection Period, a report substantially
in the form of Exhibit C hereto (each, a "Report"), setting forth, as of the
last day of such Collection Period (with respect to each Report, the "Report
Effective Date"), (i) the Loan Documents held by the Custodian as of such Report
Effective Date and as of the Report Effective Date for the immediately preceding
Report, (ii) the Loan Documents delivered to the Custodian since the Report
Effective Date for the immediately preceding Report, and (iii) the Loan
Documents released by the Custodian since the Report Effective Date for the
immediately preceding Report. For purposes of clauses (ii) and (iii) above with
respect to the
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first Report delivered by the Custodian hereunder, "the Report Effective Date
for the immediately preceding Report" shall be deemed to mean the date on which
the Loan Documents are initially delivered to the Custodian hereunder. Each
Report shall identify the applicable Loan Documents by loan number.
(b) On the date any Loan Documents are initially delivered to
the Custodian hereunder, (i) SFC shall deliver a notice to the Trustee and the
Program Agent indicating such Loan Documents as shall have been added on such
date, identified by loan number and (ii) the Custodian shall deliver to the
Trustee (with a copy to the Program Agent and SFC) a Receipt substantially in
the form of Exhibit D attached hereto identifying the Loan Documents that it has
received and confirming that it holds such Loan Documents on the Trustee's
behalf.
(c) From time to time upon reasonable prior notification,
during normal business hours, the Program Agent and the Trustee, and any of
their respective authorized agents, employees or representatives, shall have the
right (i) to visit the office of the Custodian (or its subcontractor) where the
Loan Documents are kept, (ii) to examine the facilities for the storage and
safekeeping thereof, (iii) to review the procedures with which such documents
are stored and catalogued, (iv) to examine and make copies of and abstracts from
such documents, and (v) to discuss matters relating to the Loan Documents and
the Custodian's performance hereunder with any officer of the Custodian having
knowledge of such matters.
(d) The Custodian shall provide to the Trustee and the Program
Agent such other information as either may from time to time reasonably request,
concerning the Loan Documents which are in the possession of the Custodian.
SECTION 2.09. Custodian's Liability. The Custodian shall have
no liability whatsoever by reason of any error of judgment for any act done or
step taken or omitted by it, or for any mistake of fact or law for anything
which it may do or refrain from doing in connection herewith, unless caused by
or arising out of its own gross negligence or willful misconduct. Furthermore,
the Program Agent, SFC and Sirrom each agree to hold the Custodian harmless from
any and all losses, expenses, damages and costs (including, without limitation,
attorneys fees) incurred by either as a result of their execution of, or
performance of their respective obligations under, this Agreement, unless
however, such losses, expenses, damages and
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costs are caused by or arise out of the Custodian's gross negligence or willful
misconduct. The provisions of this Section 2.09 shall be continuing and shall
survive the termination of this Agreement.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01. Representations and Warranties of the Custodian.
The Custodian hereby represents and warrants to SFC, the Program Agent and the
Trustee, on behalf of itself and the Noteholders, as follows:
(i) The Custodian is a national banking association duly
incorporated, validly existing and in good standing under the laws of
the United States of America and has all required corporate power and
authority to enter into and perform its obligations under this
Agreement.
(ii) The execution, delivery and performance by the Custodian
of this Agreement has been duly authorized by all necessary corporate
action on the part of the Custodian.
(iii) The Custodian has, and has created, no liens against any
Loan Document.
(iv) There are no actions or proceedings pending or, to the
actual knowledge of any officers of the Custodian, threatened against
it before any court or other governmental authority (A) which question
the validity or enforceability of this Agreement; or (B) which relate
to the trust powers of the Custodian and which, if determined adversely
to the position of the Custodian, would materially and adversely affect
the ability of the Custodian to perform its obligations as Custodian
under this Agreement.
(v) This Agreement has been duly executed and delivered by the
Custodian.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Fees and Expenses of the Custodian. SFC agrees
to pay the Custodian such fees (the "Custodian Fees") and expenses as set forth
in the fee letter of even date herewith between SFC and the Custodian.
SECTION 4.02. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by each party
hereto, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 4.03. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telex
communication and communication by facsimile copy) and mailed, telexed,
transmitted or delivered, as to each party hereto, at its address set forth
under its name on the signature pages hereof or at such other address as shall
be designated by such party in a written notice to the other parties hereto. All
such notices and communications shall be effective, upon receipt, or in the case
of delivery by facsimile copy, when verbal communication of receipt is obtained,
in each case addressed as aforesaid.
SECTION 4.04. Binding Effect; Assignability; Term. This
Agreement shall be binding upon and inure to the benefit of the Trustee, the
Program Agent, SFC, Sirrom and the Custodian and their respective successors and
permitted assigns. The Program Agent may assign at any time its rights and
obligations hereunder and interests herein without the consent of the SFC,
Sirrom or the Custodian. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the Termination Date, provided,
however, that the provisions of Section 2.09 shall be continuing and shall
survive the termination of this Agreement. The Custodian may not assign any of
its rights, duties and obligations hereunder or any interest herein without the
prior written consent, executed by an Authorized Employee, of the Program Agent.
SECTION 4.05. Resignation and Removal. The Custodian may
resign at any time by giving written notice thereof to the Program Agent not
less than 120 days' prior to the effective date of such resignation. The
Custodian may be removed by the Trustee
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or the Program Agent at any time, with or without cause, by the Trustee or the
Program Agent, as the case may be, giving written notice thereof to the
Custodian not less than ten (10) days prior to the effective date of such
removal. Upon any such resignation or removal, the Program Agent shall have the
right to appoint a successor Custodian. Any such successor shall, upon its
acceptance thereof, succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Custodian, and the retiring Custodian
shall be discharged from its duties and obligations as Custodian under this
Agreement.
SECTION 4.06. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws and decisions of the State of New
York.
SECTION 4.07. Execution in Counterparts; Severability. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
SIRROM FUNDING CORPORATION
By:
------------------------------
Name:
Title:
Notice Address:
c/o Sirrom Capital Corporation
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
SIRROM CAPITAL CORPORATION,
individually and as Servicer
By:
------------------------------
Name:
Title:
Notice Address:
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
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FIRST TRUST NATIONAL ASSOCIATION,
as Custodian
By:
-------------------------------
Name:
Title:
Notice Address:
000 Xxxx Xxxxx Xxxxxx, XXXXXX00
Xx. Xxxx, Xxxxxxxxx 00000
Attention: DCS - Client Services
Telecopier: (000) 000-0000
ING BARING (U.S.) CAPITAL MARKETS,
INC., as Program Agent
By:
------------------------------
Name:
Title:
Notice Address:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Acknowledged and agreed to
this ____ day of December, 1996
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Name:
Title:
Notice Address:
000 Xxxx Xxxxx Xxxxxx, XXXX0000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance Administration
Telecopier: (000) 000-0000
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EXHIBIT A
Form of Loan Document Transmittal Sheet
Loans transferred from Sirrom Funding Corporation to Sirrom Capital Corporation
as of _______ (date)
Sirrom Custodial Confirmation
(Note any discrepancies)
---------------------------------------------------------------------------------------------------------------------------
Borrower Name
---------------------------------------------------------------------------------------------------------------------------
Loan Amount
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Interest Rate
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Maturity Date
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Original Note properly endorsed
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Original or Copy of Loan Agreement
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Original or Copy of Security Agreement
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Original Stock Warrant Agreement
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Original Real Estate Related documents (if applicable)
1. Original mortgage (A certified copy if the
original has been lost or a copy with the
signature of a responsible officer stating that
the mortgage is at the recording office)
2. An original endorsed assignment of the
mortgage (or copy in the case of the
circumstances discussed in (1) above)
3. Originals of all intervening documents (or
copy in the case of the circumstances
discussed in (1) above)
4. Copies of appraisals, environmental surveys
and questionnaires, title insurance policies,
etc.
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List of any other documents
---------------------------------------------------------------------------------------------------------------------------
* Upon completion, please fax immediately to the Program Agent, the Trustee,
Sirrom Funding Corporation and Xxxxxx Xxxxxxx Xxxxxxxxxxx.
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00
XXXXXXX X-0
__________ __, 199__
First Trust National Association,
as Custodian
000 Xxxx Xxxxx Xxxxxx, XXXXXX00
Xx. Xxxx, Xxxxxxxxx 00000
Attention: DCS - Client Services
First Trust National Association,
as Trustee
000 Xxxx Xxxxx Xxxxxx, XXXX0000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance Administration
ING Baring (U.S.) Capital
Markets, Inc., as Program Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Re: Sirrom Funding Corporation - Removal of Loan
Documents
Ladies and Gentlemen:
Pursuant to Section 2.04(b) of that certain Custodian
Agreement dated as of [_________], 1996 (the "Custodian Agreement"; capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed thereto in the Custodian Agreement) among Sirrom Funding Corporation
("SFC"), Sirrom Capital Corporation, First Trust National Association, as
Custodian and ING Baring (U.S.) Capital Markets, Inc., as Program Agent, the
undersigned hereby requests that the following Loan Documents be delivered into
our possession:
[Identify Loan Documents to be released,
including loan numbers and other requested information]
In connection with the foregoing, the undersigned hereby
represents and warrants as follows:
(a) A copy of this notice has been delivered to the Trustee
and the Program Agent simultaneously with delivery to the Custodian.
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(b) With respect to each of the foregoing Loan Documents,
either (1)(A) the applicable Issuer Loan is an Ineligible Purchased
Loan (as such term is defined in the Loan Purchase Agreement) and (B)
Sirrom has, pursuant to Section 8.02 of the Loan Purchase Agreement,
either (x) substituted a new Eligible Loan therefor and delivered the
Loan Documents related thereto to the Custodian or (y) repurchased such
Ineligible Purchased Loan by depositing repurchase price thereof to the
Collection Account, or (2) the applicable Issuer Loan has been
transferred pursuant to Section 2.06(a) of the Indenture and all of the
conditions precedent to such transfer have been satisfied.
(c) No Set-Aside Period shall have occurred and be continuing,
no Event of Default, "Event of Default" under any Supplement or
Servicer Default shall have occurred or be continuing, nor shall any
event exist which but for notice, or the lapse of time, or both, would
constitute an Event of Default, an "Event of Default" under any
Supplement or a Servicer Default.
Very truly yours,
SIRROM FUNDING CORPORATION
By:
------------------------
[Title]
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EXHIBIT B-2
__________ __, 199__
First Trust National Association,
as Custodian
000 Xxxx Xxxxx Xxxxxx, XXXXXX00
Xx. Xxxx, Xxxxxxxxx 00000
Attention: DCS - Client Services
First Trust National Association,
as Trustee
000 Xxxx Xxxxx Xxxxxx, XXXX0000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance Administration
ING Baring (U.S.) Capital
Markets, Inc., as Program Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Re: Sirrom Funding Corporation - Removal of Loan
Documents
Ladies and Gentlemen:
Pursuant to Section 2.04(c) of that certain Custodian
Agreement dated as of [_________], 1996 (the "Custodian Agreement"; capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed thereto in the Custodian Agreement) among Sirrom Funding Corporation
("SFC"), Sirrom Capital Corporation, First Trust National Association, as
Custodian and ING Baring (U.S.) Capital Markets, Inc., as Program Agent, the
undersigned hereby requests that the following Loan Documents be delivered into
our possession:
[Identify Loan Documents to be released,
including loan numbers and other requested information]
In connection with the foregoing, the undersigned hereby
represents and warrants as follows:
(a) A copy of this notice has been delivered to the Trustee
and the Program Agent simultaneously with delivery to the Custodian.
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(b) With respect to each of the foregoing Loan Documents,
either (1)(A) the applicable Issuer Loan has been paid in full and (B)
that all amounts received or to be received in connection with such
payment which are required to be transferred to the Collection Account
in accordance with the terms of the Indenture have been so transferred
or (2) the Servicer has reasonably determined that it is necessary to
take possession of the Loan Documents with respect to such Issuer Loan
for the purpose of foreclosure thereon or further servicing thereof.
(c) No Set-Aside Period shall have occurred and be continuing,
no Event of Default, "Event of Default" under any Supplement or
Servicer Default shall have occurred or be continuing, nor shall any
event exist which but for notice, or the lapse of time, or both, would
constitute an Event of Default, an "Event of Default" under any
Supplement or a Servicer Default.
Very truly yours,
SIRROM CAPITAL CORPORATION
By:
----------------------
[Title]
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EXHIBIT C
__________ __, 199__
First Trust National Association,
as Trustee
000 Xxxx Xxxxx Xxxxxx, XXXX0000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance Administration
ING Baring (U.S.) Capital
Markets, Inc., as Program Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Re: Sirrom Funding Corporation - Report
Ladies and Gentlemen:
We are sending this letter to you pursuant to Section 2.08(a)
of that certain Custodian Agreement dated as of [_________], 1996 (the
"Custodian Agreement") among Sirrom Funding Corporation ("SFC"), Sirrom Capital
Corporation, First Trust National Association, as Custodian and ING Baring
(U.S.) Capital Markets, Inc., as Program Agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed thereto in the
Custodian Agreement). This letter constitutes the Report for the period (the
"Report Period") from ________________ to _________________ (the "Report
Effective Date"). As of such Report Effective Date:
1. Loan Documents Held During Entire Report Period
[List applicable Loan Documents by loan
number, and include other requested information]
2. Loan Documents Delivered During Report Period
[List applicable Loan Documents by loan
number, and include other requested information]
19
3. Loan Documents Released During Report Period
[List applicable Loan Documents by loan
number, and include other requested information]
Very truly yours,
FIRST TRUST NATIONAL
ASSOCIATION, as Custodian
By:
---------------------
[Title]
2
20
EXHIBIT D
__________ __, 199__
First Trust National Association,
as Trustee
000 Xxxx Xxxxx Xxxxxx, XXXX0000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance Administration
ING Baring (U.S.) Capital
Markets, Inc., as Program Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Re: Sirrom Funding Corporation - Report
Ladies and Gentlemen:
We are sending this letter to you pursuant to Section 2.08(b)
of that certain Custodian Agreement dated as of [_________], 1996 (the
"Custodian Agreement") among Sirrom Funding Corporation ("SFC"), Sirrom Capital
Corporation, First Trust National Association, as Custodian and ING Baring
(U.S.) Capital Markets, Inc., as Program Agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed thereto in the
Custodian Agreement).
The undersigned hereby confirms to you its receipt of the
following Loan Documents:
[List applicable Loan Documents by loan
number, and include other requested information]
The undersigned hereby confirms that all of the above-listed Loan Documents
shall be held in trust for the benefit of the Trustee, on behalf of the
Noteholders, and shall be held at all times hereafter in accordance with the
terms of the Custodial Agreement.
Very truly yours,
FIRST TRUST NATIONAL
ASSOCIATION, as Custodian
By:
-----------------------
[Title]
21
EXHIBIT E
RESPONSIBLE OFFICERS
Name Title
---- -----
Xxxxxx X. Xxxxxx, XX President
Xxxxx X. Xxxxx Chief Operating Officer
Xxxx X. Xxxxxxxx Chief Financial Officer
Xxxxxxxx Xxxxxxxxxxx Controller/Treasurer
2
22
SCHEDULE I
Authorized Employees
Xxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxxx
