Exhibit 10.29
CUSTODIAL AND COLLATERAL AGENCY AGREEMENT
CUSTODIAL AND COLLATERAL AGENCY AGREEMENT, dated as of February 11,
2003 (this "Agreement"), among U.S. BANK NATIONAL ASSOCIATION ("US Bank"), as
custodian and collateral agent (together with its successors in such capacity,
the "Custodian"), FCC ACCEPTANCE CORP. (the "Borrower"), FIRST CONSUMER CREDIT,
INC., individually ("FCC") and as Servicer (together with its successors in such
capacity, the "Servicer") and DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK,
FRANKFURT AM MAIN, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, pursuant to the Receivables Loan and Security Agreement,
dated as of the date hereof (as amended, restated, supplemented and/or otherwise
modified from time to time, the "RLSA"), among the Lender named therein (the
"Lender"), the Agent, US Bank, the Servicer, the Backup Servicer and the
Borrower, the Lender has agreed to provide financing for the purchase by the
Borrower of certain Receivables and the Related Security and Other Conveyed
Property related thereto;
WHEREAS, pursuant to the RLSA, the Borrower has granted to the Agent,
for the benefit of the Lender, a security interest in, among other things, all
of the Pledged Receivables and the related Receivable File for the purpose of
securing the due and punctual payment of all amounts due from the Borrower under
the terms of the RLSA;
WHEREAS, the Agent desires that the Custodian hold the Specified
Documents (defined below) with respect to each Master Receivables File and each
Individual Receivable File (the Specified Documents with respect to each such
Master Receivables File and each such Individual Receivable File being hereafter
referred to as a "Specified Document File") and other documents related thereto
as the Custodian for, and bailee of, the Borrower and the Agent, for the benefit
of the Lender;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein have the meanings ascribed thereto in the RLSA. The following terms shall
have the following meanings when used in this Agreement:
"Collateral Receipt" means an Individual Receivable File Collateral
Receipt or a Master Receivables File Collateral Receipt.
"Deficiency" means, (a) with respect to any Individual Receivable
File, (i) the failure of one or more Specified Documents contained therein to be
fully executed or to correspond substantively to the information on the related
Receivables Schedule (it being agreed that a difference of $1.00 or less between
any dollar amount contained in any Specified Document and the corresponding
dollar amount contained in the related Receivables Schedule shall not constitute
a Deficiency), (ii) one or more Specified Documents contained therein are
mutilated, damaged, torn or otherwise physically altered (except to the extent
such physical alteration is inconsequential) or (iii) the absence from a
Specified Document File of any Specified Document required to be contained in
such Specified Document File or (iv) any discrepancies under Section 4(b)
hereof, or (b) with respect to any Master Receivables File, (i) the failure of
one or more Specified Documents contained therein to be fully executed or (ii)
the absence from a Specified Document File of any Specified Document required to
be contained in such Specified Document File or (iii) any discrepancies under
Section 4(b) hereof.
"Individual Receivable File Collateral Receipt" has the meaning set
forth in Section 4 hereof.
"Master Receivables File Collateral Receipt" has the meaning set forth
in Section 6 hereof.
"Notice of Pledge" means a fully executed Confirmation and Notice of
Pledge in the form of Exhibit 5 to this Agreement.
"Receivable File" means either a Master Receivables File or an
Individual Receivable File.
"Receivables Schedule" means the schedule of Contracts evidencing
Pledged Receivables appended to a Notice of Pledge delivered by the Borrower to
the Custodian and the Agent. Each such schedule shall identify each Contract by
(i) the "Annual Percentage Rate" as set forth on such Contract, (ii) the Obligor
name, (iii) the Contractor related to such Contract and (iv) whether such
Contract is a Mortgage Contract or a Non-Mortgage Contract.
"Request for Release of Documents" means a request for release,
appropriately completed, substantially in the form of Exhibit 1 to this
Agreement.
"Specified Documents" means, with respect to any Receivable File, the
documents required to be contained in such Receivable File pursuant to the
definition of "Master Receivables File" or "Individual Receivable File", as
applicable, contained in the RLSA.
2. Appointment of the Custodian. Subject to the terms and conditions
hereof, each of the Agent and the Borrower hereby revocably appoints the
Custodian, and the Custodian hereby accepts such appointment and agrees to act
as custodian, bailee and collateral agent on behalf of the Borrower and the
Agent, for the benefit of the Lender, to maintain exclusive custody of the
Receivable Files pertaining to the Receivables from time to time Pledged under
the RLSA in order to perfect the ownership interest of the Borrower and the
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security interest of the Agent, for the benefit of the Lender, in the Contracts
evidencing such Receivables and the other items in the Receivable Files and any
and all proceeds of the foregoing. In performing its duties hereunder, the
Custodian agrees to act with reasonable care, using that standard of skill and
attention that the Custodian would exercise with respect to the files relating
to all comparable installment sale contract receivables or other receivables
that it services or holds for itself or others (provided that if applicable
industry standards of care, skill and attention are more stringent than the
Custodian's standard of care skill and attention, the Custodian shall be
obligated to follow the more stringent industry standards).
3. Delivery of Individual Receivable Files.
(a) Not later than 1:00 P.M. (New York City time) six (6)
Business Days prior to the initial Borrowing Date and three (3) Business Days
prior to any other Borrowing Date (or if more than 1,000 Receivable Files are so
reviewed by the Custodian, then not later than the time period which shall be
mutually agreed upon by the Borrower, the Custodian and the Agent), the Borrower
shall deliver (or cause to be delivered) to the Custodian and the Agent a Notice
of Pledge together with a Receivables Schedule listing each of the Receivables
to be Pledged under the RLSA on such Borrowing Date. Not later than 1:00 P.M.
(New York City time) six (6) Business Days prior to the initial Borrowing Date
and three (3) Business Days prior to any other Borrowing Date, the Borrower
shall deliver (or cause to be delivered) and, upon Pledge of such Receivables
pursuant to the RLSA, release to the Custodian as custodian for, and bailee of,
the Agent, for the benefit of the Lender, the Individual Receivable File
pertaining to each of the Receivables to be Pledged under the RLSA on such
Borrowing Date. Not later than 1:00 P.M. (New York City time) six (6) Business
Days prior to the initial Borrowing Date and three (3) Business Days prior to
any other Borrowing Date on which Receivables will be generated under a Contract
related to a new Contractor, the Borrower shall deliver (or cause to be
delivered) and release to the Custodian as custodian for, and bailee of, the
Agent, for the benefit of the Lender, the Master Receivables File related to
such Contract. The information set forth on any Receivables Schedule delivered
pursuant to this Section 3(a) shall also be concurrently delivered to the
Custodian in an electronic format acceptable to the Borrower, the Agent and the
Custodian.
(b) The Custodian shall be entitled to rely upon each Receivables
Schedule provided by the Borrower pursuant to Section 3(a) as the conclusive
schedule in its review, pursuant to Section 4 hereof, of the Receivable Files.
(c) From time to time, the Borrower shall forward to the
Custodian for inclusion in the appropriate Receivable File copies of any
additional documents which come into existence and are required to be included
in a Receivable File previously delivered to the Custodian, and the Custodian
shall add such additional documents to the appropriate Receivable File.
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4. Certification Regarding Individual Receivable File.
(a) Not later than 2:30 P.M. (New York City time) on the Business
Day prior to any Borrowing Date the Custodian shall deliver to the Agent, the
Servicer and the Borrower an acknowledged Notice of Pledge and a certificate
(each such certificate, an "Individual Receivable File Collateral Receipt"), in
the form annexed as Exhibit 2 hereto, to the effect that, as to each Receivable
to be Pledged to the Agent listed on the Receivables Schedule delivered to the
Custodian and the Agent pursuant to Section 3(a), (i) all Specified Documents
required to be included in the related Individual Receivable File have been
fully executed and are in its possession, (ii) such documents have been reviewed
by it and have not been mutilated, damaged, torn or otherwise physically altered
(except to the extent such physical alteration is inconsequential) and (iii)
based on its examination of the related Individual Receivable File, the
information set forth on the Receivables Schedule with respect to such
Receivable accurately reflects the information set forth in the related
Individual Receivable File; provided, however that if any such statements are,
in part or in whole, not true and correct, the Custodian shall detail in such
Collateral Receipt any Deficiencies that it discovers.
(b) The Borrower, the Agent, and the Custodian may from time to
time agree in writing to alternative certification procedures with respect to
any particular Receivable to be Pledged to Agent.
5. Deficiencies In Individual Receivable Files.
(a) If any Collateral Receipt discloses any Deficiencies in any
of the related Individual Receivable Files, then the Custodian promptly (and, in
any case, not later than the delivery of such Collateral Receipt) shall notify
the Servicer, the Borrower and the Agent of such Deficiencies. The Agent shall
notify the Custodian, the Borrower and the Servicer in writing that either (i)
the Deficiencies noted in such Collateral Receipt are waived or (ii) the
Servicer must cure the Deficiencies noted in such Collateral Receipt within
thirty days of the date of such notification (it being understood by the parties
hereto that the Receivable related to any Individual Receivable File as to which
an unwaived or uncured Deficiency exists, shall not be Pledged to the Agent and
shall not be deemed an Eligible Receivable under the RLSA).
(b) If a notice given to the Custodian by the Agent pursuant to
Section 5(a) states that the Servicer shall take the action specified in clause
(ii) of Section 5(a) above and the Servicer fails to take such action within the
time period set forth in clause (ii) of Section 5(a) above, then the Custodian
shall notify the Agent, the Borrower and the Servicer of such failure through
its delivery of periodic exception reports and shall retain the deficient
Individual Receivable File or, at the direction of the Borrower or the Servicer,
return such Individual Receivable File to the Borrower.
(c) Within five (5) Business Days after receipt by the Custodian
of any additional documents pursuant to Section 5(a), the Custodian shall review
such documents and deliver to the Agent and the Borrower a revised Collateral
Receipt. If the revised Collateral
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Receipt shall indicate any remaining Deficiencies in an Individual Receivable
File, the provisions of this Section 5 shall again be followed.
6. Certification Regarding Master Receivables File
Not later than 2:30 P.M. (New York City time) on the Business Day
prior to any Borrowing Date the Custodian shall deliver to the Agent, the
Servicer and the Borrower a certificate (each such certificate, a "Master
Receivables File Collateral Receipt"), in the form annexed as Exhibit 7 hereto,
to the effect that all Specified Documents required to be included in any such
Master Receivables File have been fully executed and delivered and are in its
possession; provided, however that if any such statements are, in part or in
whole, not true and correct, the Custodian shall detail in such Collateral
Receipt any Deficiencies that it discovers.
7. Deficiencies In Master Receivables Files:
(a) If any Master Receivables File Collateral Receipt discloses
any Deficiencies in any of the related Master Receivables File, then the Agent
shall notify the Custodian, the Borrower and the Servicer in writing that either
(i) the Deficiencies noted in such Master Receivables File Collateral Receipt
are waived or (ii) the Servicer must cure the Deficiencies noted in such Master
Receivables File Collateral Receipt within thirty days of the date of such
notification (it being understood by the parties hereto that any Receivable
related to any Master Receivables File as to which an unwaived or uncured
Deficiency exists, shall not be Pledged to the Agent and shall not be deemed an
Eligible Receivable under the RLSA).
(b) If a notice given to the Custodian by the Agent pursuant to
Section 7(a) states that the Servicer shall take the action within the time
period specified in clause (ii) of Section 7(a) above and the Servicer fails to
take such action, then the Custodian shall notify the Agent, the Borrower and
the Servicer of such failure and shall retain the deficient Master Receivables
File (and any related Individual Receivable Files) or, at the direction of the
Borrower or the Servicer, return such Master Receivables File (and any related
Individual Receivable Files) to the Borrower.
(c) Within five (5) Business Days after receipt by the Custodian
of any additional documents pursuant to Section 7(a), the Custodian shall review
such documents and deliver to the Agent and the Borrower a revised Master
Receivables File Collateral Receipt. If the revised Master Receivables File
Collateral Receipt shall indicate any remaining Deficiencies in a Master
Receivables File, the provisions of this Section 7 shall again be followed.
8. Obligations of the Custodian.
(a) The Custodian shall segregate and maintain continuous custody
(except as otherwise required by this Agreement) of the Receivable Files in the
State of
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Minnesota in secure and fire resistant facilities in accordance with customary
standards for such custody.
(b) With respect to the documents constituting each Receivable
File, the Custodian shall, upon purchase of such related Receivable by the
Borrower and Pledge of such Receivable by the Borrower to the Agent (A) act as
the custodian for, and the bailee of the Borrower to perfect the ownership
interest of the Borrower in the documents constituting such Receivable File, (B)
act as the custodian for, and the bailee (for purposes of UCC Section 9-313) of,
the Agent, for the benefit of the Lender to perfect the security interest of the
Agent, for the benefit of the Lender, in the documents constituting such
Receivable File, (C) hold all documents constituting such Receivable File
received by it for the exclusive use and benefit of the Agent, for the benefit
of the Lender, and (D) make dispositions thereof only in accordance with the
terms of this Agreement or with written instructions furnished by the Agent.
(c) In the event that (i) the Agent, the Borrower, the Servicer
or the Custodian shall be served by a third party with any type of levy,
attachment, writ or court order with respect to any Receivable File or a
document included within a Receivable File or (ii) a third party shall institute
any court proceeding by which any Receivable File or a document included within
a Receivable File shall be required to be delivered otherwise than in accordance
with the provisions of this Agreement, the party receiving such service shall
promptly deliver or cause to be delivered to the other parties to this Agreement
copies of all court papers, orders, documents and other materials concerning
such proceedings. The Custodian shall continue to hold and maintain all
Receivable Files that are the subject of such proceedings pending a final order
of a court of competent jurisdiction permitting or directing disposition
thereof. Upon final determination of such court, the Custodian shall dispose of
such Receivable File or any document included within such Receivable File as
directed by such determination or, if no such determination is made, in
accordance with the provisions of this Agreement. Expenses of the Custodian
incurred as a result of such proceedings shall be borne by the Borrower.
9. Release of Receivable Files.
(a) The Custodian shall release any Receivable File to the Agent
upon written request of the Agent or, to the extent specified in a written
request by the Borrower (which shall have been acknowledged and signed by the
Agent) in connection with a release of Pledged Receivables pursuant to the terms
of Section 2.18 of the RLSA, to the Borrower or its designee.
(b) In addition, if the Servicer delivers to the Custodian a
Request for Release of Documents to (which such Request for Release of Documents
shall have been acknowledged and signed by the Agent), the Custodian shall
deliver a specified Receivable File to the Servicer. If a Receivable File is
released to the Servicer pursuant to the previous sentence for the purpose of
facilitating the servicing or enforcement of the Receivable related to such
Receivable File, the Servicer shall return such Receivable File immediately upon
its need for such Receivable File having come to an end. At such time as the
Servicer returns any such
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Receivable File to the Custodian, the Servicer shall provide written notice of
such return to the Agent and the Custodian in the form of Exhibit 3 to this
Agreement. The Custodian shall acknowledge receipt of the returned materials by
signing the Servicer's notice and shall promptly send copies of such
acknowledgment of receipt to the Agent and the Servicer.
10. Fees and Expenses of the Custodian. It is understood that the
Custodian shall be entitled to charge fees and receive reimbursement for
reasonable out-of-pocket expenses under this Agreement, as specified in that
certain "Schedule of Fees for Custodian" dated December 9, 2002 attached hereto
as Exhibit 6 and such fees and expenses shall be payable solely out of
Collections pursuant to Section 2.05(c) of the RLSA.
11. Inspection. Upon reasonable prior written notice to the Custodian,
each of the Agent, the Borrower and their respective authorized representatives
will be permitted during the Custodian's normal business hours to examine the
Receivable Files, documents, records and other papers in the possession or under
the control of the Custodian relating to any or all of the Pledged Receivables.
The reasonable out-of-pocket expenses incurred by the Custodian, if any, in
connection with any such examination shall be payable by the Borrower from funds
available to pay such amounts pursuant to Section 2.05(c) of the RLSA.
12. [Intentionally omitted.]
13. Insurance of the Custodian. The Custodian shall, at its own
expense, maintain at all times during the term of this Agreement and keep in
full force and effect (a) fidelity insurance, (b) theft of documents insurance,
(c) fire insurance, and (d) forgery insurance. All such insurance shall be in
amounts, with standard coverage and subject to deductibles, as are customary for
similar insurance typically maintained by banks that act as custodian in similar
transactions.
14. Periodic Statements. Within two (2) Business Days after the
written request of the Agent, the Servicer or the Borrower, the Custodian shall
provide to the requesting party a list of all the Pledged Receivables for which
the Custodian holds a Receivable File pursuant to this Agreement. Such list may
be in the form of a copy of all Receivables Schedules with manual deletions to
specifically denote any Pledged Receivables paid in full, liquidated or released
since the date of this Agreement.
15. Copies of Receivable Files. Within three (3) Business Days after
the written request of the Agent, the Servicer or the Borrower, the Custodian
shall provide the requesting party, at the requesting party's own expense, with
copies of the documents in the Receivable Files.
16. Resignation by and Removal of Custodian; Successor Custodian.
(a) The Custodian may at any time resign and terminate its
obligations under this Agreement upon at least 90 days' prior written notice to
the Borrower, the Servicer and the Agent; provided, however that no such
resignation or termination shall be effective until
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a successor Custodian is appointed (and accepts such appointment) pursuant to
the terms of this Section 16(a). Promptly after receipt of notice of the
Custodian's intended resignation, the Borrower shall appoint, by written
instrument, a successor custodian which shall be acceptable to the Agent. If the
Borrower fails to appoint a successor custodian pursuant to the terms hereof
within 30 days after receipt of the Custodian's notice of resignation, the Agent
shall have the exclusive right to appoint by written instrument, a successor
custodian. If the Agent fails to appoint a successor Custodian within 60 days
after receipt of the Custodian's notice of resignation, the Custodian may
petition a court of competent jurisdiction to appoint a successor custodian. One
original counterpart of any aforementioned instrument of appointment shall be
delivered to each of the Borrower, the Agent, the Servicer and the successor
custodian.
(b) The Agent, with or without cause, upon at least 60 days'
written notice to the Custodian, may remove and discharge the Custodian (or any
successor custodian thereafter appointed) from the performance of its
obligations under this Agreement. A copy of such notice shall be delivered to
the Borrower. Promptly after the giving of notice of removal of the Custodian,
the Agent shall appoint, by written instrument, a successor custodian. One
original counterpart of such instrument of appointment shall be delivered to
each of the Borrower, the Agent, the Custodian and the successor custodian.
(c) In the event of any such resignation or removal, after the
payment of outstanding fees and expenses, the Custodian shall promptly transfer
to the successor custodian (at its sole expense unless terminated without cause
pursuant to Section 16(b)), as directed in writing by the Agent, all Receivable
Files being administered under this Agreement.
17. Indemnity. The Borrower, to the extent of funds available to pay
such amounts pursuant to Section 2.05(c) of the RLSA, agrees to indemnify and
hold harmless the Custodian against any and all claims, losses, liabilities,
damages or expenses (including, but not limited to, reasonable attorneys' fees,
court costs and costs of investigation) of any kind or nature whatsoever arising
out of or in connection with this Agreement that may be imposed upon, incurred
by or asserted against the Custodian; provided, however, that this Section 17
shall not relieve the Custodian from liability for its willful misfeasance, bad
faith or gross negligence or for its failure to perform its duties hereunder in
accordance with the standard of care set forth in Section 2. The provisions of
this Section 17 shall survive the resignation or removal of the Custodian and
the termination of this Agreement. Any amounts payable by the Borrower hereunder
shall be limited to funds available to pay such amounts pursuant to Section
2.05(c) of the RLSA.
18. Limitation of Liability.
(a) In connection with the Custodian's timely performance of its
obligations and duties under Sections 4(a), 5, 6, 7, 8 and 9 hereof, the
Custodian shall not be liable to the Borrower, the Agent or any other Person for
any loss, claim, damage, liability or expense resulting from or arising out of
any act or failure to act by it, other than for any loss, claim, damage,
liability or expense arising out of the Custodian's failure to perform such
obligations in accordance with the standard of care set forth in Section 2.
Except in connection
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with the Custodian's timely performance of its obligations and duties under
Sections 4(a), 5, 6, 7, 8 and 9, the Custodian shall not be liable to the
Borrower, the Agent or any other Person for any loss, claim, damage, liability
or expense resulting from or arising out of any act or failure to act by it in
connection with this Agreement, other than for any loss, claim, damage,
liability or expense arising out of willful misfeasance, gross negligence or
reckless disregard of its obligations hereunder. The obligations of the
Custodian shall be determined solely by the express provisions of this
Agreement. No representation, warranty, covenant, agreement, obligation or duty
of the Custodian shall be implied with respect to this Agreement or the
Custodian's services hereunder.
(b) In the Custodian's review of documents pursuant to Section 4
or Section 6 of this Agreement, the Custodian shall be under no duty or
obligation to inspect, review or examine the Receivable Files to determine that
the contents thereof are genuine, enforceable or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
(c) The Custodian may rely, and shall be protected in acting or
refraining from acting, in each case, in accordance with the terms of this
Agreement, upon and need not verify the accuracy of, (i) any written
instructions, from any persons the Custodian reasonably believes to be
authorized to give such instructions, who shall only be, with respect to the
Borrower, the Servicer and the Agent, persons the Custodian believes in good
faith to be Authorized Representatives (as defined in Section 21 hereto), and
(ii) any written instruction, notice, order, request, direction, certificates,
opinion or other instrument or document reasonably believed by the Custodian to
be genuine and to have been signed and presented by the proper party or parties,
which, with respect to the Borrower, the Servicer and the Agent, shall mean
signature and presentation by Authorized Representatives whether such
presentation is by personal delivery, express delivery or facsimile.
(d) The Custodian may consult with counsel with regard to legal
questions arising out of or in connection with this Agreement, and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, omitted or suffered by the Custodian in
reliance, in good faith, and in accordance therewith.
(e) No provision of this Agreement shall require the Custodian to
expend or risk its own funds (except as provided in Section 16(c)) or otherwise
incur financial liability in the performance of its duties under this Agreement
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity is not reasonably assured to it.
(f) The Custodian shall not be responsible or liable for, and
makes no representation or warranty with respect to, the validity, adequacy or
perfection of any lien upon, or security interest in, any Pledged Receivables or
related Receivable Files purported to be granted at any time pursuant to the
RLSA.
(g) Notwithstanding anything to the contrary in Section 18(a),
the Custodian shall not be liable for any delays in performance for causes
beyond its control,
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including, but not limited to, fire, flood, epidemic, unusually severe weather,
strike, acts of the Borrower or the Agent, restriction by civil or military
authority in their sovereign or contractual capacities, transportation failure,
or inability to obtain labor. In the event of any such delay, performance shall
be extended for so long as such period of delay.
(h) The Custodian shall have no duties or responsibilities except
those that are specifically set forth herein. The Custodian shall be under no
responsibility or duty with respect to the disposition of any Receivable Files
while such Receivable Files are not in its possession. If the Custodian shall
request instructions from the Agent with respect to any act, action or failure
to act in connection with this Agreement, the Custodian shall be entitled to
refrain from taking such action and continue to refrain from acting unless and
until the Custodian shall have received written instructions from the Agent,
without incurring any liability therefor to the Agent, the Borrower or any other
Person; provided, that the Custodian shall at all times maintain custody of the
Receivable Files (except as otherwise required by this Agreement) and otherwise
comply with its obligations hereunder.
19. Borrower, FCC and the Servicer Remain Liable. Notwithstanding any
term or provision of this Agreement, (a) FCC, the Servicer and the Borrower
shall remain liable under the RLSA, the Purchase and Contribution Agreement and
other agreements executed with respect to the Pledged Assets to perform all of
their respective duties and obligations thereunder to the same extent as if this
Agreement had not been executed and (b) the exercise by the Agent or the
Custodian of any of their respective rights under this Agreement shall not
release the Borrower, FCC or the Servicer from any of their respective duties or
obligations under the RLSA, the Purchase and Contribution Agreement or any other
agreements executed with respect to the Pledged Assets.
20. Term of Agreement. This Agreement shall be terminated upon written
notice of termination from the Agent to the Custodian and payment in full of all
amounts due to the Custodian hereunder. If the RLSA has terminated on or prior
to the termination of this Agreement, upon receipt of written notice from the
Agent, the Custodian shall deliver all documents remaining in the Receivable
Files to the Borrower or its designee at the Borrower's expense. If the RLSA
remains in effect at the time this Agreement is terminated, upon receipt of
written notice from the Agent, the Custodian shall deliver all documents
remaining in the Receivable Files to the Agent or such other person as may be
designated by the Agent at the Borrower's expense.
21. Authorized Representatives. The names of the officers of the
Borrower, the Servicer and of the Agent who are authorized to give and receive
notices, requests and instructions and to deliver certificates and documents in
connection with this Agreement on behalf of the Borrower, the Servicer and the
Agent ("Authorized Representatives") are set forth on Exhibit 4 hereto. From
time to time, the Borrower, the Servicer and the Agent may, by delivering to the
Custodian a revised exhibit, change the information previously given, but the
Custodian shall be entitled to rely conclusively on the last exhibit until
receipt of a superseding exhibit. The parties hereto acknowledge and agree that
FCC has been appointed pursuant to the RLSA as Servicer to service, administer
and collect the Pledged Receivables and otherwise to
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enforce the rights and interests of the Borrower, the Agent and the Lender in
and under the Pledged Receivables and the other Pledges Assets. Until receipt by
the Custodian of written notice, with a copy to the Borrower and FCC, from the
Agent of the designation of a successor Servicer pursuant to the provisions of
the RLSA, the Borrower and the Agent on behalf of the Lender hereby authorize
and instruct the Custodian to accept performance of FCC, as Servicer, as the
agent of the Borrower, the Agent and the Lender with respect to matters relating
to the servicing, administration and collection of the Pledged Receivables and
the enforcement of the rights and interests of the Borrower, the Agent and the
Lender in and under the Pledged Receivables and the other Pledged Assets,
including the discharge of such duties of the Borrower hereunder.
22. Notices. Except where telephonic instructions or notices are
authorized herein to be given, all notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
overnight courier service, or by registered, certified or express mail, postage
prepaid, return receipt requested, or by facsimile copy (accompanied by a
telephonic confirmation of receipt thereof), or telegram (with messenger
delivery specified in the case of a telegram) and shall be deemed to be
delivered for purposes of this Agreement on (a) the fifth Business Day following
the day on which such notice was placed in the custody of the U.S. Postal
Service, (b) the next Business Day following the day on which such notice was
placed in the custody of any overnight courier service, including express mail
service or (c) the same Business Day on which such notice is sent by telegram,
messenger or facsimile. Unless otherwise specified in a notice sent or delivered
in accordance with the foregoing provisions of this Section, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties hereto at their respective addresses (or to their
respective facsimile numbers) indicated below, and, in the case of telephonic
instructions or notices, by calling the telephone number or numbers indicated
for such party below:
If to the Borrower: FCC Acceptance Corp.
00000 Xxxxxxxxx Xxxxx (Xxxxx 000)
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Servicer: First Consumer Credit, Inc.
00000 Xxxxxxxxx Xxxxx (Xxxxx 000)
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
11
If to the Agent: DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt
Am Main
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Finance Group - Xxxxxxx Xxxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Custodian: U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Attention: Structured Finance
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
23. GOVERNING LAW. THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW
PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
24. Consent to Service; Submission to Jurisdiction; Waiver of Trial by
Jury. Each party irrevocably consents to the service of process by registered or
certified mail, postage prepaid, to it at its address set forth in Section 22
hereof. With respect to any claim arising out of this Agreement, each party
hereto irrevocably submits to the exclusive jurisdiction of the courts of the
State of New York and the United States District Court for the Southern District
of New York, and each party irrevocably waives any objection which it may have
at any time to the laying of venue of any suit, action or proceeding arising out
of or relating hereto brought in any such court, irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in any inconvenient forum and further irrevocably waives the right to
object, with respect to such claim, suit, action or proceeding brought in any
such court, that such court does not have jurisdiction over such party, provided
that service of process is made as set forth in this Section 24, or by any other
lawful means. To the extent permitted by applicable law, each party irrevocably
waives all right of trial by jury in any action, proceeding or counterclaim
arising out of or in connection with this Agreement or any matter arising
hereunder.
25. Assignment; Binding Effect. No party to this Agreement may assign
its rights or delegate its obligations under this Agreement without the express
written consent of the other parties hereto. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. In addition, the Lender shall be a third party
beneficiary hereof.
12
26. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed to be an original, and
together shall constitute and be one and the same instrument. Delivery of an
executed counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
27. Headings. The Section headings are not part of this Agreement and
shall not be used in its interpretation.
28. Representations, Warranties and Covenants of the Custodian.
(a) The Custodian hereby represents and warrants to, and
covenants with the Agent, for the benefit of the Lender, and the Borrower that
as of the date hereof and as of each Borrowing Date:
(i) The Custodian is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America;
(ii) The Custodian has the full power and authority to hold each
Contract and each other item in any Receivable File on behalf of the
Borrower and the Agent, for the benefit of the Lender, and to execute,
deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement and the RLSA, and has duly authorized
the execution, delivery and performance of this Agreement and the
RLSA, has duly executed and delivered this Agreement and the RLSA, and
this Agreement and the RLSA constitute the legal, valid and binding
obligations of the Custodian, enforceable against it in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable
remedies;
(iii) None of the execution and delivery of this Agreement, the
RLSA, the receipt of Receivable Files by the Custodian, the
consummation of the transactions contemplated hereby or thereby, nor
the fulfillment of or compliance with the terms and conditions of this
Agreement and/or the RLSA will conflict with or result in a breach of
any of the terms, conditions or provisions of the Custodian's charter
or bylaws or any agreement or instrument to which the Custodian is now
a party or by which it is bound, or constitute a default or result in
an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation order, judgment or decree to which the
Custodian or its property is subject;
(iv) There is no litigation pending or, to the Custodian's
knowledge, after due inquiry, threatened, which if determined
adversely to the Custodian,
13
would adversely affect the execution, delivery or enforceability of
this Agreement, or any of the duties or obligations of the Custodian
thereunder, or which would have a material adverse effect on the
financial condition of the Custodian;
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Custodian of or compliance by the Custodian
with this Agreement or the consummation of the transactions
contemplated hereby or thereby;
(vi) Upon written request of the Agent, the Custodian shall take
such reasonable steps as requested by the Agent to protect or maintain
any interest in any Pledged Receivable; and
(vii) The Custodian has not been notified by any party that any
third party claims an interest in the Pledged Receivables or is
requesting the Custodian to act as a bailee with respect to the
Receivable Files, except such interests as are created under the RLSA.
(b) The Custodian covenants and warrants to the Agent, the Lender
and the Borrower that as of the initial Borrowing Date: (i) it holds no adverse
interest, by way of security or otherwise, in any Pledged Receivable or
Receivable File; and (ii) the execution of this Agreement and the creation of
the custodial relationship hereunder does not create any interest, by way of
security or otherwise, of the Custodian in or to any Pledged Receivable or
Receivable File, other than the Custodian's rights as custodian and bailee
hereunder.
29. Advice from Independent Counsel. The parties hereto understand
that this Agreement is a legally binding agreement that may affect such party's
rights. Each party represents to the others that is has received legal advice
from counsel of its choice regarding the meaning and legal significance of this
Agreement and that it is satisfied with its legal counsel and the advice
received from it.
30. Merger or Consolidation of the Custodian. Any corporation, banking
association or trust company into which the Custodian may be merged or converted
or consolidated with, or any corporation, banking association or trust company
resulting from any merger, conversion or consolidation to which the Custodian
shall be a party, or any corporation, banking association or trust company
succeeding to all or substantially all the corporate trust business of the
Custodian, shall be the successor of the Custodian hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
31. Certain Remedies; Instructions of Agent.
(a) The Custodian may, in its discretion (with the consent of the
Agent), and shall, at the direction of the Agent, perform the Custodian's duties
and protect and enforce the Custodian's rights and the rights of the Agent and
the Lender under this Agreement
14
by such appropriate actions and proceedings as the Custodian (with the consent
of the Agent) or the Agent shall deem most effective to protect and enforce any
such rights, whether by bringing suit for the specific enforcement of any
covenant or agreement in this Agreement or by the exercise of any power granted
herein or therein, or by any other proper remedy or legal or equitable right
vested in the Custodian under this Agreement or by applicable law.
(b) Without limitation to any provision of Section 31(a) hereof,
the Custodian hereby agrees to follow the instructions of the Agent with respect
to the performance of the Custodian's duties, the exercise of the Custodian's
powers and the enforcement of the Custodian's rights (in any capacity) and the
rights of the Agent and the Lender under this Agreement.
32. Amendments. No amendment or modification of any provision of this
Agreement shall be effective without the written agreement of each of the
parties hereto, and no termination or waiver of any provision of this Agreement
or consent to any departure therefrom by the Custodian, the Borrower or the
Servicer shall be effective without the written concurrence of the Agent.
33. No Proceedings. The Custodian hereby agrees that it will not
institute against, or join any other Person in instituting against, the Borrower
any proceedings of the type referred to in the definition of Bankruptcy Event in
the RLSA so long as any obligations of the Borrower under the RLSA shall be
outstanding or there shall not have elapsed one year and one day since the last
day on which any such obligations shall have been outstanding or commercial
paper shall have been outstanding.
[Signature page to follow.]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized representatives as of the day and year
first above written.
FCC ACCEPTANCE CORP.
By:
--------------------------------
Name:
Title:
FIRST CONSUMER CREDIT, INC.
By:
--------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as the Custodian
By:
--------------------------------
Name:
Title:
DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK,
FRANKFURT AM MAIN, as the Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Exhibit 1 to
Custodial and Collateral Agency Agreement
REQUEST FOR RELEASE OF DOCUMENTS
[__________ __, 20__]
To: U.S. Bank National Association
Attn: Document Custody Services SPFTMZ04
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: Custodial and Collateral Agency Agreement (the "Agreement") dated
as of February ,2003 among FCC Acceptance Corp., First Consumer
--
Credit, Inc., DZ Bank AG Deutsche Zentral-Genossenschaftsbank,
Frankfurt Am Main, as the Agent and U.S. Bank National
Association, as the Custodian
In connection with the administration of the Pledged Receivables and
related Receivable Files held by you as the Custodian for the Agent, for the
benefit of the Lender, we request the release, and acknowledge receipt of the
[Receivable File/specify documents] for the Pledged Receivable(s) described
below, for the reason(s) indicated.
Obligor's Name, Address & ZIP Code:
Receivable Number:
Reason for Requesting Documents (check one)
1. Receivable paid in full
--------
2. Receivable substituted with alternate Receivable to be delivered
--------
to the Custodian with a revised Receivables Schedule
indicating substitutions
3. Receivable needs to be redelivered pursuant to Section 9 of the
--------
Agreement
4. Other (explain)
-------- -------------------------------
If part of the Receivable File was previously released to us, please
release to us our previous Request for Release of Documents on file with you, as
well as any additional documents in your possession relating to the above
specified Pledged Receivable.
17
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Agreement.
FIRST CONSUMER CREDIT, INC.
By:
--------------------------------
Name:
Title:
Date:
--------------------------
ACKNOWLEDGED AND AGREED:
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK,
FRANKFURT AM MAIN
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Date:
--------------------------
18
Exhibit 2 to
Custodial and Collateral Agency Agreement
[__________ __, 20__]
Aggregate amount
of the Pledged Receivables on the
Receivables Schedule dated
-------------, ----: $-----
Individual Receivable File Collateral Receipt
FCC Acceptance Corp.
00000 Xxxxxxxxx Xxxxx (Xxxxx 000)
Xxxxxx, Xxxxx 00000
First Consumer Credit, Inc.
00000 Xxxxxxxxx Xxxxx (Xxxxx 000)
Xxxxxx, Xxxxx 00000
DZ Bank AG Deutsche Zentral-Genossenschaftsbank,
Frankfurt Am Main
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial and Collateral Agency Agreement (the "Agreement") dated as of
February , 2003 among FCC Acceptance Corp., First Consumer Credit, Inc,
----
DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, as the
Agent and U.S. Bank National Association, as the Custodian
Ladies and Gentlemen:
In accordance with the provisions of Section 4 of the Agreement, the
undersigned, as the Custodian, hereby certifies that, as to each Receivable
listed in the Receivables Schedule dated , 20 , a copy of which is
-------- -- --
attached hereto, it has reviewed the documents delivered to it pursuant to
Section 3 of the Agreement and has determined that, except as noted in the
attached Schedule, (i) all Specified Documents required to be included in the
related Individual Receivable File are fully executed and in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged, torn or otherwise physically altered (except to the extent such
physical alteration is inconsequential) and (iii) based on its examination of
the related Individual Receivable File, the information set forth in the
Receivables Schedule respecting such Receivable accurately reflects the
information set forth in the related Individual Receivable File. The Custodian
has made no independent examination of
19
such documents beyond the review specifically required in the Agreement. The
Custodian makes no representations as to the: (i) validity, legality,
sufficiency, enforceability or genuineness of any such documents contained in
the Individual Receivable File related to any of the Pledged Receivables
identified on the Receivables Schedule other than that such documents are fully
executed, or (ii) collectability, insurability, effectiveness or suitability of
any such Pledged Receivable.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as the Custodian
By:
--------------------------------
Name:
Title:
20
SCHEDULE OF DEFICIENCIES:
21
Exhibit 3 to
Custodial and Collateral Agency Agreement
[__________ __, 20__]
RETURN OF DOCUMENTS TO CUSTODIAN
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Attn: Document Custody Services SPFTMZ04
Xx. Xxxx, Xxxxxxxxx 00000
DZ Bank AG Deutsche Zentral-Genossenschaftsbank,
Frankfurt Am Main, as Agent
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial and Collateral Agency Agreement (the "Agreement") dated as of
February , 2003 among FCC Acceptance Corp., First Consumer Credit, Inc.,
--
DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main, as the
Agent and U.S. Bank National Association, as the Custodian
Ladies and Gentlemen:
In accordance with Section 9 of the Agreement, enclosed please find
the Receivable File for the Pledged Receivable(s) described below:
[Obligors Name, Address & Zip Code:
Receivable Number: ]
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Agreement.
FIRST CONSUMER CREDIT, INC., as Servicer
By:
--------------------------
Name:
Title:
Date: , 20
---------------------- --
22
RECEIPT ACKNOWLEDGED:
U.S. BANK NATIONAL ASSOCIATION,
as the Custodian
By:
-----------------------------------
Name:
Title:
Date:
-----------------------------
23
Exhibit 4 to
Custodial and Collateral Agency Agreement
Authorized Representatives of First Consumer Credit, Inc.
Name
[_______________]
[_______________]
[_______________]
Authorized Representatives of the Agent
Name
Xxxx Xxxxx
Xxxxxxx Xxxxxxxxxx
Authorized Representatives of the Borrower
Name
[_______________]
[_______________]
[_______________]
24
Exhibit 5
Custodial and Collateral Agency Agreement
CONFIRMATION AND NOTICE OF PLEDGE
[__________ __, 20__]
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Gentlemen:
The undersigned hereby notifies you, as the Custodian, that the
Contracts and related Receivable Files specified in the attached Schedule A (the
"Receivables Schedule") will be pledged by the Borrower pursuant to a
Receivables Loan and Security Agreement (the "RLSA") dated as of February 11,
2003 among FCC Acceptance Corp., First Consumer Credit, Inc., the Lender named
therein and DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt Am Main,
as the Agent, and, upon purchase by the undersigned and Pledge of such
Receivables to the Agent pursuant to the RLSA, are to be held by you as bailee
of, and agent for, the Agent, for the benefit of the Lender, as secured party
pursuant to the provisions of the Custodial and Collateral Agency Agreement (the
"Custodial Agreement") dated as of February 11, 2003 among FCC Acceptance Corp.,
First Consumer Credit, Inc., DZ Bank AG Deutsche Zentral- Genossenschaftsbank,
Frankfurt Am Main, as the Agent and U.S. Bank National Association, until
released or transferred as provided in the Custodial Agreement. Capitalized
words used herein and not otherwise defined herein shall have the respective
meanings assigned to them in the Custodial Agreement.
A security interest in the Pledged Receivables has been granted to the
Agent, for the benefit of the Lender, pursuant to the RLSA. On the Borrowing
Date immediately following the delivery of your Collateral Receipt pursuant to
the provisions of the Custodial Agreement, you are instructed to enter the
Agent's name and address in your records as the pledgee of such Pledged
Receivables (Receivables as to which no Deficiencies have been reported) and to
promptly provide to the Agent an acknowledgment of this Notice of Pledge by
signing in the space provided below and delivering an acknowledged copy of this
Notice of Pledge to the Agent at DZ Bank AG Deutsche
Zentral-Genossenschaftsbank, Frankfurt Am Main, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset-Backed Finance Group. Such acknowledgment will
serve to confirm that this Notice of Pledge has been duly received by you and
that (i) the related Receivable Files are being held by you as bailee of, and
collateral agent for, the Agent, for the benefit of the Lender, and (ii) you
have duly reflected on your records that the Agent, for the benefit of the
Lender, has been granted a security interest in and to such Contracts and
related Receivable Files all in accordance with the provisions of the Custodial
Agreement.
25
FCC ACCEPTANCE CORP.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Date:
------------------------------
ACKNOWLEDGED BY:
U.S. BANK NATIONAL ASSOCIATION, as the Custodian
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Date:
-------------------------------------
26
Schedule A
Receivables Schedule
27
Exhibit 6
Custodial and Collateral Agency Agreement
Schedule of Fees
(See attached)
28
Exhibit 7 to
Custodial Agreement
[__________ __, 20__]
Master Receivables File Collateral Receipt
FCC Acceptance Corp.
00000 Xxxxxxxxx Xxxxx (Xxxxx 000)
Xxxxxx, Xxxxx 00000
DZ Bank AG Deutsche Zentral-Genossenschaftsbank,
Frankfurt am Main, as Agent
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial Agreement (the "Agreement") dated as of February , 2003 among
--
FCC Acceptance Corp., First Consumer Credit, Inc., DZ Bank AG Deutsche
Zentral-Genossenschaftsbank, Frankfurt am Main, as the Agent and U.S. Bank
National Association, as the Custodian
Ladies and Gentlemen:
In accordance with the provisions of Section 6 of the Agreement, the
undersigned, as the Custodian, hereby certifies that, as to the Master
Receivables File delivered to it on , 20 , it has reviewed the
-------- -- --
documents delivered to it pursuant to Section 6 of the Agreement and has
determined that, except as noted in the attached Schedule, all Specified
Documents required to be included in such Master Receivables File have been
fully executed and delivered and are in its possession.
The Custodian has made no independent examination of such documents
beyond the review specifically required in the Agreement. The Custodian makes no
representations as to the: (i) validity, legality, sufficiency, enforceability
or genuineness of any such documents contained in the aforementioned Master
Receivables File other than that such documents are fully executed, or (ii)
collectability, insurability, effectiveness or suitability of any Pledged
Receivable.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Agreement.
29
U.S. BANK NATIONAL ASSOCIATION,
as the Custodian
By:
--------------------------------
Name:
Title:
30
