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EXHIBIT 10.2
EXECUTION COPY
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CUSTODIAL AGREEMENT
among
FINANCIAL SECURITY ASSURANCE, I NC.,
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Agent,
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Custodian,
ACC CONSUMER FINANCE CORPORATION
and
ACC LIQUIDITY, LLC
Dated March 27, 1997
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TABLE OF CONTENTS
Page
Section 1. Definitions..........................................................1
Section 2. Delivery Of Contract Files...........................................4
Section 3. Certification........................................................4
Section 4. Deficiencies In Contract Files.......................................5
Section 5. Distributions.........................................................6
Section 6. Obligations Of The Custodian.........................................8
Section 7. Release Of Contract Files............................................9
Section 8. Release Upon Repurchase Or Payment In Full...........................9
Section 9. Fees And Expenses Of The Custodian...................................9
Section 10. Examination Of Contract Files......................................10
Section 11. Representations And Warranties Of The Custodian....................10
Section 12. Insurance Of The Custodian.........................................10
Section 13. Periodic Statements................................................10
Section 14. Copies Of Contract Documents.......................................11
Section 15. Resignation By And Removal Of The Custodian; Successor Custodian...11
Section 16. Indemnity..........................................................11
Section 17. Limitations Of Liability...........................................12
Section 18. Term Of Agreement..................................................12
Section 19. Authorized Representatives.........................................13
Section 20. Notices............................................................13
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Section 21. Governing Law; Venue; Consent to Jurisdiction......................14
Section 22. Assignment.........................................................14
Section 23. Counterparts.......................................................14
Section 24. Headings...........................................................15
Section 25. Third Party Beneficiaries..........................................15
Section 26. Certain Remedies...................................................15
Section 27. Remedies...........................................................17
Section 28. Optional Preservation of the Receivables...........................19
Section 29. Claims Under Note Policy...........................................19
Section 30. Withdrawals from Spread Account....................................20
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CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT dated March 27, 1997 among Financial
Security Assurance, Inc., as guarantor under the Policy ("FSA"), Credit Suisse
First Boston, New York Branch, as agent for the Purchasers (as hereinafter
defined) (in such capacity, the "Agent"), Norwest Bank Minnesota, National
Association, a national banking association, and ACC Liquidity LLC, a Delaware
limited liability company (the "Borrower") and ACC Consumer Finance Corporation
("ACC"), as servicer and as originator.
WHEREAS, ACC is the owner of certain Contracts (as hereinafter
defined);
WHEREAS, Borrower desires to purchase certain of such
Contracts;
WHEREAS, the Investors (as hereinafter defined) has agreed to
finance the purchase of such Contracts pursuant to the Receivables Financing
Agreement (as hereinafter defined);
WHEREAS, ACC will deliver to the Custodian the Contracts, and
the Secured Parties desire that the Custodian take possession of such Contracts
as the custodian for, and bailee of, the Secured Parties in order to perfect the
Secured Parties' security interest in such Contracts and other documents, in
each case in accordance with the terms and conditions of this Agreement; and
WHEREAS, ACC will service the Contracts pursuant to the
Receivables Financing Agreement (as hereinafter defined).
NOW, THEREFORE, ACC, the Borrower, FSA, the Custodian and the
Agent intending to be legally bound, hereby agree as follows:
Section 1. Definitions. For all purposes of this Agreement,
the following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise. Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Receivables Financing
Agreement.
"ACC" has the meaning specified in the Preamble.
"Agent" has the meaning specified in the Preamble.
"Agreement" means this Custodial Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Alpine" means Alpine Securitization Corp., a Delaware
corporation.
"Alpine Priority Payment" means amounts payable to Alpine, the
Lenders and the Placement Agent pursuant to clauses FIRST, SECOND and THIRD of
paragraph 3 of the Fee Letter.
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"Alpine Secondary Payment" means amounts payable to the
Placement Agent, Alpine, the Agent, the Facility Agent, any Lender or any entity
which enters into a commitment to make Advances on purchase interests therein or
in the Notes pursuant to clauses FOURTH and FIFTH of paragraph 3 of the Fee
Letter.
"Amount Available" means, with respect to any Distribution
Date, the sum of (i) the amount on deposit in the Collection Account at the end
of the preceding Collection Period plus (ii) the amount on deposit in the
Liquidity Account at the end of the preceding Collection Period and plus (iii)
on the first Distribution Date following the Facility Termination Date, the
amount described in Section 5(c) hereof.
"Authorized Representative" is defined in Section 19.
"Borrower" has the meaning specified in the Preamble.
"Borrowing Base Notice of Pledge" has the meaning specified in
Section 3(d).
"Business Day" means any day other than (i) a Saturday or a
Sunday or (ii) another day on which banking institutions (including any
applicable Federal Reserve Bank) in the States of California, Minnesota or New
York are authorized or obligated by law, executive order or governmental decree
to be closed.
"Certification" means either of the Receipt Certification or
the Collateral Receipt.
"Collateral Receipt" is defined in Section 3(b).
"Contract" means a new or used automobile or light truck
installment sale contract or promissory note, purchased by Borrower,
underwritten by ACC and financed by Alpine pursuant to the Receivables Financing
Agreement.
"Contract File" means, with respect to a Contract, the file
maintained by the Custodian with respect to such Contract, which includes,
without limitation, the following items: (i) the fully executed original
Contract, endorsed, "Pay to the order of Norwest Bank Minnesota, National
Association, as custodian" and signed in the name of OFL-A Receivables Corp. by
an authorized officer (together with any agreements modifying the Contract
including, without limitation, any extension agreements), (ii) documents
evidencing or relating to any Insurance Policy, (iii) the original credit
application of each Obligor, fully executed by each such Obligor on ACC's
customary form or on a form approved by ACC, for such application and (iv) the
Lien Certificate, or, if not yet received, a copy of the application therefor,
showing OFL-A Receivables Corp., American Credit Corporation, ACC d/b/a Accent
Financial Services or ACC as secured party and such documents, if any, that ACC
keeps on file in accordance with its customary procedures indicating that the
Financed Vehicle is owned by the Obligor and subject to the interest of OFL-A or
ACC (as successor to American Credit Corporation where American Credit
Corporation is shown
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as the secured party) as first lienholder or secured party, together with an
assignment of the Lien Certificate by the Borrower to the Custodian.
"Contract Schedule" means the schedule of Contracts appended
to a Notice of Pledge delivered by the Borrower to the Custodian, such schedule
identifying each Contract by (i) the social security number, name and mailing
address of the Obligor, (ii) the account number, (iii) the Purchase Amount, (iv)
the Amount Financed, (v) the Principal Balance as of the Purchase Date, (vi) the
day of the month on which Scheduled Payments are due, (vii) the first date on
which a Scheduled Payment is due, (viii) the Annual Percentage Rate, (ix) the
amount of the Scheduled Payment, (x) the original term of the Contract and (xi)
the remaining term of the Contract.
"Custodian" means Norwest Bank Minnesota, National
Association, not in its individual capacity, but solely as Custodian under this
Agreement, and any successors thereto.
"Custodian's Fee" is defined in Section 9.
"Deficiency" means a failure of a document to correspond
substantively to the information on the Contract Schedule or the absence of a
required document or required information from a Contract File.
"Deficiency Claim Date" means, with respect to any
Distribution Date, the fourth Business Day preceding such Distribution Date.
"Draw Date" means, with respect to a Distribution Date,
the third Business Day immediately preceding such Distribution Date.
"Financed Vehicle" means the new or used automobile or light
duty truck, together with all accessories, additions and parts constituting a
part thereof and all accessions thereto.
"FSA" has the meaning specified in the Preamble.
"FSA Priority Payment" has the meaning set forth in clause
FIFTH of Section 5(b) hereof.
"FSA Secondary Payment" means amounts owing to FSA under the
Insurance Agreement and not paid pursuant to clause SEVENTH of Section 5(b)
hereof.
"Increased Costs" means collectively, any increased cost, loss
or liability owing to Alpine, the Agent and/or a Lender under Article VI of the
Receivables Financing Agreement.
"Indemnity Amounts" means collectively, all indemnity
obligations owing to Alpine, the Agent, any Lender, any other owners by
assignment, participation or otherwise of an Advance and/or any entity which
enters into a commitment to make Advances or purchase interests therein under
Article XVII of the Receivables Financing Agreement.
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"Insurance Agreement" means the Insurance and Indemnity
Agreement dated as of March 27, 1997, among FSA, the Borrower, ACC and OFL-A.
"Net Amount Available" means, with respect to any
Distribution Date, the amount described in clause (i) of the definition of
"Amount Available."
"Net Total Amount Available" means, with respect to any
Distribution Date, the Total Amount Available minus the amount on deposit in the
Liquidity Account at the opening of business on such Distribution Date.
"Notice of Pledge" means a fully executed Confirmation and
Notice of Pledge in the form of Exhibit A to this Agreement.
"Person" means an individual, corporation (including a
business trust), partnership, limited liability company, joint venture, joint
stock company, trust, unincorporated association or government or any agency or
political subdivision thereof or any other entity.
"Receipt Certification" is defined in Section 3(a).
"Receivables Financing Agreement" means the Receivables
Financing Agreement, dated as of March 27, 1997, by and among the Borrower, ACC,
as Servicer, Alpine, Credit Suisse First Boston, New York Branch, as Agent, the
financial institutions party thereto and Norwest Bank Minnesota, National
Association, as Backup Servicer and Custodian.
"Request for Release and Receipt of Documents" means a request
for release substantially in the form of Exhibit D to this Agreement.
"Scheduled Payment" means with respect to any Contract, the
periodic payment set forth in such Contract (excluding, however, any portion of
such payment that represents late payment charges and payment in respect of
taxes, licenses or similar items).
"Secured Parties" means, collectively, Alpine, FSA, each
Purchaser, each Lender and all other owners by assignment, participation or
otherwise of an Advance or the Note and, to the extent of the undivided
interests so purchased, shall include any participants.
"Servicer" means ACC and any successor servicer appointed
pursuant to the Receivables Financing Agreement.
"Spread Account Agreement" means the Spread Account
Agreement dated as of June 1, 1995 among ACC Funding Corp., ACC Receivables
Corp., FSA and the Custodian.
"Total Amount Available" means, with respect to any
Distribution Date, the sum of (i) the Amount Available and (ii) the amount
deposited with the Custodian pursuant to Section 30 hereof from the Spread
Account.
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Section 2. Delivery Of Contract Files. ACC hereby agrees to
deliver from time to time to the Custodian, as custodian for the Secured
Parties, pursuant to any Notice of Pledge, complete Contract Files in loan
number sequence corresponding to the Contract Schedule attached to such Notice
of Pledge.
The Custodian shall be entitled to rely upon each Contract
Schedule provided by ACC as the conclusive schedule in its review, pursuant to
Section 3, of the Contract Files. From time to time, ACC shall forward to the
Custodian for inclusion in the appropriate Contract File, any additional
original documents evidencing any assumption or modification of a Contract
approved by ACC in accordance with its then current underwriting guidelines.
Section 3. Certification. (a) Upon receipt by the Custodian of
the Contract Files, the Custodian shall deliver by 3:30 p.m. New York time to
FSA, ACC and the Agent a certificate (the "Receipt Certification"), in
substantially the form annexed as Exhibit B, to the effect that, as to each
Contract listed on the related Contract Schedule attached to such Receipt
Certification (other than any Contract paid in full or any Contract specifically
identified in such Receipt Certification as not covered by such Receipt
Certification), the Custodian is in receipt of a Contract File, and the name of
the Obligor on the Contract in such Contract File and the Amount Financed set
forth in such Contract matches such information as set forth in the accompanying
Contract Schedule.
(b) Within one (1) Business Day after the delivery to the
Custodian of the Contract Files, the Custodian shall deliver to FSA, ACC and the
Agent a receipt (the "Collateral Receipt") in substantially the form annexed as
Exhibit C, to the effect that, as to each Contract listed on the related
Contract Schedule attached to such Collateral Receipt (other than any Contract
paid in full or any Contract specifically identified in such Collateral Receipt
as not covered by such Collateral Receipt), (i) all documents required to be
delivered to the Custodian pursuant to Section 2 are in its possession,
including the fully executed Contract, endorsed as provided in the definition of
"Contract File" in Section 1, (ii) such documents have been reviewed by it
and have not been materially mutilated, damaged or torn and relate to such
Contract and (iii) with respect to items (i) (but only with respect to name and
mailing address), (ii), (viii), (ix) and (x) in the definition of "Contract
Schedule" in Section 1, the information set forth on the Contract Schedule
accurately reflects the information set forth in the Contract.
(c) Contract Files received by the Custodian after 12:00 noon
(Minneapolis time) shall be deemed to have been received on the next Business
Day. The Custodian shall be under no duty or obligation to inspect, review or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they are other than what they purport to be on their face. The
Custodian shall be under no duty to determine whether any item in the Contract
File is an original document. ACC shall notify the Custodian by telephone one
(1) Business Day before each Business Day on which ACC expects to deliver
Contract Files to the Custodian and shall inform the Custodian as to the number
of Contract Files to be delivered on such Business Day.
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(d) By 3:00 p.m. New York time, the Custodian shall deliver to
FSA and the Agent a written Notice of Pledge (each, a "Borrowing Base Notice of
Pledge"), to the effect that, the Borrowing Base Certificate delivered to the
Custodian on the prior Business Day pursuant to Section 11.4(a) of the
Receivables Financing Agreement (i) has been examined and recalculated (after
taking into account the Contract Files delivered on the Business Day on which
the Borrowing Base Notice of Pledge is to be delivered) by the Custodian and
(ii) does or does not evidence the existence of a Borrowing Base Deficiency.
(e) ACC, FSA, the Agent and the Custodian may from time to
time agree in writing to alternative certification procedures with respect to
any Contracts or Borrowing Base Certificates.
Section 4. Deficiencies In Contract Files. (a) If any
Certification discloses any Deficiencies in the related Contract Files, then the
Custodian promptly shall notify ACC, the Borrower, FSA and the Agent of such
Deficiencies. The Agent and FSA, acting unanimously, promptly shall notify the
Custodian and ACC in writing that either (i) the Deficiencies noted in such
Certification are waived or (ii) ACC shall cure the Deficiencies within the time
period set forth in such notice.
(b) If a notice given to the Custodian pursuant to clause (a)
states that ACC shall take the action specified in clause (ii) of clause (a)
above and ACC fails to take such action within the time period set forth in such
notice, then the Custodian shall notify the Agent, FSA and ACC of such failure
and shall release or shall retain the deficient Contract File in accordance with
the written instructions of the Agent and FSA.
(c) Within one (1) Business Day after receipt by the Custodian
of any additional documents pursuant to clause (a) above, the Custodian shall
review such documents and deliver to the Agent and FSA a revised Certification.
If the updated list of deficiencies shall indicate any remaining Deficiencies in
a Contract File, the provisions of this Section 4 shall again be followed.
Section 5. Distributions. (a) On each Distribution Date
prior to the Facility Termination Date, the Custodian shall distribute, in
accordance with the applicable Servicer's Certificate, the following amounts in
the following order of priority:
(i) FIRST, unless ACC and the Controlling Party shall choose
otherwise in accordance with the provisions of clause TENTH hereof, and
shall have furnished the Custodian with a written notice to such
effect, to the extent that ACC or any Affiliate thereof is not the
Servicer, to the Servicer, from the Amount Available the Servicing Fee
for the related Collection Period and any amounts specified in Section
8.18(b) of the Receivables Financing Agreement;
(ii) SECOND, pro rata, from the Amount Available to Alpine, any
Lockbox Bank, Custodian or Backup Servicer (including the Custodian if
acting in any such additional capacity), any accrued and unpaid fees
and expenses (as set forth in each such Person's
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respective fee agreement) (in each case, to the extent such Person
has not previously received such amount from the Servicer or ACC);
(iii) THIRD, pro rata, from the Amount Available to the Agent on
behalf of Alpine, itself, any Lender or any entity which enters into a
commitment to make Advances or purchase interests therein or in the
Notes, any Increased Costs due and owing to such Person up to, in the
aggregate for all such persons, an amount equal to .75% of the
outstanding principal amount of Advances on such Distribution Date;
(iv) FOURTH, to the Agent, from the Total Amount Available any
Yield due under the Receivables Financing Agreement in respect of
outstanding Advances;
(v) FIFTH, from the Net Total Amount Available, to FSA, to
the extent of any amounts owing to FSA under the Insurance Agreement
and not paid in respect of any premiums;
(vi) SIXTH, to the Liquidity Account, from the Net Amount
Available, the amount of any Liquidity Account Shortfall; and
(vii) SEVENTH, from the Net Amount Available, to the Agent, the
principal amount of any Advances which pursuant to the Receivables
Financing Agreement to be paid or prepaid pursuant to Section 4.1
thereof;
(viii) EIGHTH, pro rata, from the Net Amount Available, to the
Agent on behalf of Alpine, itself, any Lender or any entity which
enters into a commitment to make Advances on purchase interests therein
or in the Notes, any Increased Costs and Indemnity Amounts due and
owing to such Person and not previously paid pursuant to clause THIRD
above;
(ix) NINTH, from the Total Amount Available, to FSA, to the
extent of any amounts owing to FSA under the Insurance Agreement and
not paid except any amounts paid under clause FIFTH;
(x) TENTH, to the extent that ACC or any Affiliate thereof is
the Servicer, from the Net Amount Available, to the Servicer, the
Servicing Fee for the related Collection Period and any amounts
specified in Section 8.18(b) of the Receivables Financing Agreement;
provided, however, that ACC and the Controlling Party may deem amounts
due pursuant to this clause NINTH to be due pursuant to clause FIRST
above;
(xi) ELEVENTH, to the Borrower, all remaining amounts of the
Net Amount Available.
(b) On each Distribution Date on or after the Facility
Termination Date, the Custodian shall distribute, in accordance with the
applicable Servicer's Certificate, the following amounts in the following order
of priority:
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(i) FIRST, unless ACC and the Controlling Party shall choose
otherwise in accordance with the provisions of clause TENTH hereof, to
the extent that ACC or any Affiliate thereof is not the Servicer, to
the Servicer, from the Amount Available, the Servicing Fee for the
related Collection Period and any amounts specified in Section 8.18(b)
of the Receivables Financing Agreement;
(ii) SECOND, pro rata from the Amount Available, to the
Custodian or Backup Servicer (including the Custodian if acting in any
such additional capacity), any accrued and unpaid fees and expenses (as
set forth in each such Personos respective fee agreement) (in each
case, to the extent such Person has not previously received such amount
from the Servicer or ACC);
(iii) THIRD, to the Agent on behalf of the Investors from the
Total Amount Available, any Yield due under the Receivables Financing
Agreement in respect of outstanding Advances;
(iv) FOURTH, to the Custodian from the Total Amount Available,
for distribution in accordance with the Fee Letter, an amount equal to
(x) the sum of the daily interest, for each day during the same period
for which Yield is calculated for purposes of paragraph THIRD above,
equal to the product of (A) the Maximum Interest Rate, (B) the
outstanding principal balance of all Advances and (C) 1/360, minus, (y)
the amount of Yield distributed pursuant to clause THIRD above;
(v) FIFTH, to the extent that ACC or an Affiliate thereof is
the Servicer, from the Amount Available, in the following order of
priority (x) to the extent of any amounts owing to FSA in respect of
premiums under the Insurance Agreement and not paid to FSA, up to an
amount equal to the Premium payable pursuant to the Insurance Agreement
(the "FSA Priority Payment") and (y) to the Facility Agent, the
positive difference between the Servicing Fee for the related
Collection Period (to the extent not previously paid pursuant to clause
FIRST above) and the amount paid pursuant to subclause (x) above, to be
distributed by the Facility Agent pursuant to the Fee Letter;
(vi) SIXTH, to the Agent on behalf of the Investors, as a
payment of principal in reduction of outstanding Advances (x) from the
Total Amount Available, the excess of (I) the outstanding principal
amount of Advances over (II) the Aggregate Outstanding Principal
balance of all Receivables as of the end of the prior Collection
Period; and (y) from the Amount Available, the amount necessary to
reduce the outstanding principal balance of the Advances to zero;
(vii) SEVENTH, to FSA, from the Total Amount Available, to the
extent of any amounts owing to FSA under the Insurance Agreement in
respect of amounts disbursed by FSA to pay the items set forth in
paragraphs THIRD, FOURTH, FIFTH and SIXTH above and not previously
repaid to FSA (the "FSA Secondary Payment");
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(viii) EIGHTH, pro rata from the Amount Available, to Alpine, the
Lenders, the Placement Agent and FSA, the Alpine Priority Payment and
the FSA Priority Payment, in each case to the extent not previously
paid, together with interest thereon at the Yield rate then in effect;
(ix) NINTH, pro rata from the Amount Available, to Alpine, the
Lenders, the Placement Agent and FSA, in respect of the Alpine
Secondary Payment and the FSA Secondary Payment, together with interest
thereon at the Yield rate then in effect;
(x) TENTH, to the extent that ACC or any Affiliate thereof is
the Servicer, to the Servicer, the Servicing Fee for the related
Collection Period and any amounts specified in Section 8.18(b) of the
Receivables Financing Agreement; provided, however, that ACC and the
Controlling Party may deem amounts due pursuant to this clause TENTH to
be due pursuant to clause FIRST above; and
(xi) ELEVENTH, to the Borrower, from the Amount Available
all remaining amounts.
(c) On each Interim Distribution Date prior to the Facility
Termination Date, the Custodian shall distribute, in accordance with written
direction received by it from the Servicer or the Agent, amounts in the
Collection Account:
(i) on the date of any Take-Out Securitization, in
repayment of Advances pursuant to Section 4.1(d) of the Receivables
Financing Agreement;
(ii) on the date of any prepayment Under Section 4.1(a)
of the Receivables Financing Agreement, in prepayment of Advances
pursuant to such Section;
(iii) on the date of any reduction in the Facility Limit shall
become effective pursuant to Section 2.7 of the Receivables Financing
Agreement, in prepayment of Advances pursuant to Section 4.1(b) of the
Receivables Financing Agreement; and
(iv) on the last day of any Fixed Period for any Advance, in
payment of accrued Yield due and unpaid with respect to such Advance.
(d) The Custodian shall withdraw and deposit in the Collection
Account from the Liquidity Account amounts needed to pay the amounts described
in Section 5(a) FIRST, SECOND, THIRD, FOURTH hereof. On the first Distribution
Date following the Facility Termination Date, all amounts on deposit in the
Liquidity Account and in the Collateral Accountshall be deposited in the
Collection Account and considered part of the Amount Available on such
Distribution Date, and the Liquidity Account and the Collateral Account shall be
closed.
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Section 6. Obligations Of The Custodian. (a) The Custodian
shall segregate and maintain continuous custody of the Contract Files in secure
facilities in accordance with customary standards for such custody. The
Contracts shall be maintained in fireproof facilities.
(b) With respect to the documents constituting each Contract
File, the Custodian shall on and after the delivery thereof to the Custodian (i)
act exclusively as the custodian for and the bailee (solely for purposes of UCC
Section 9-305) of the Secured Parties, (ii) hold all documents constituting such
Contract File received by it for the exclusive use and benefit of the Secured
Parties, and (iii) make disposition thereof only in accordance with the terms of
this Agreement or with written instructions furnished by the Controlling Party
and (prior to the Remarketing Date) the Agent.
(c) Upon the release of any Contract from the lien created
pursuant to the Receivables Financing Agreement, the Custodian shall deliver,
upon receipt of written instructions from the Borrower, such Contract to the
Borrower or the Borrower's designee.
(d) In the event that (i) any Secured Party, ACC, the Agent,
the Borrower or the Custodian shall be served by a third party with any type of
levy, attachment, writ or court order with respect to any Contract File or a
document included within a Contract File or (ii) a third party shall institute
any court proceeding by which any Contract File or a document included within a
Contract 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 Contract
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 Contract
File or a document included within such Contract 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.
Section 7. Release Of Contract Files. From time to time and as
appropriate for the repossession or servicing of any of the Contracts, the
Custodian is hereby authorized, upon receipt of a Request for Release and
Receipt of Documents, to release to the Servicer or the Borrower within, on a
best efforts basis, one (1) Business Day, but in no case more than two (2)
Business Days, the related Contract File or the documents from a Contract File
set forth in such Request for Release and Receipt of Documents. If the Custodian
receives such request after 12:00 noon (Minneapolis time), such request shall be
deemed to have been received on the next Business Day. All documents so released
to the Servicer or the Borrower shall be held by the Servicer or the Borrower in
trust for the benefit of the Secured Parties. The Servicer or the Borrower shall
return to the Custodian each and every document previously requested from the
Contract File when the Serviceros or the Borrower's need therefor in connection
with such foreclosure or servicing no longer exists, unless the Contract shall
be liquidated, in which case, upon receipt of a certification to this effect
from ACC or the Borrower to the Custodian in a Request for Release and Receipt
of
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Documents, ACC or the Borrower, prior Request and Receipt of Documents
relating to such Contract File shall be returned by the Custodian to ACC or the
Borrower.
Section 8. Release Upon Dividend, Repurchase Or Payment In
Full. Upon the transfer of any Contract by way of dividend or repurchase
pursuant to the Purchase and Contribution Agreement or the payment in full of
any Contract, which shall be evidenced by the delivery to the Custodian of the
Borrower's Request for Release and Receipt of Documents, the Custodian shall
release the related Contract File to the Borrower or ACC in accordance with the
time parameters set forth in Section 7.
Section 9. Fees And Expenses Of The Custodian. It is
understood that the Custodian shall be entitled to charge fees and receive
reimbursement for expenses (such fees and reimbursement are referred to
hereinafter as the "Custodian's Fee"), including fees and expenses of its agents
and counsel and expenses incurred in connection with the transfer of Contract
Files pursuant to Section 15(c), and such Custodian's Fee shall be the sole
obligation of the Borrower. Such agreed upon Custodian's Fee shall be set forth
in a separate fee letter submitted by the Custodian to the Borrower.
Section 10. Examination Of Contract Files. Upon reasonable
prior written notice to the Custodian, any Secured Party, the Agent, ACC or the
Borrower or any of their representatives and agents will be permitted during
normal business hours to examine the Contract Files, documents, records and
other papers in the possession, or under the control, of the Custodian relating
to any or all of the Contracts. Any expenses incurred by the Custodian in
connection with such examination shall be borne by the party making the request.
Section 11. Representations And Warranties Of The Custodian.
The Custodian represents and warrants as of the date hereof that:
(a) It is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America;
(b) It has full power, authority and legal right to execute,
deliver and perform this Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement;
(c) The execution, delivery and performance by it of this
Agreement do not violate (i) any provision of any law or regulation governing
the banking and trust powers of it or any order, writ, judgment, or decree or
any court, arbitrator, or governmental authority applicable to it or any of its
assets or (ii) any provision of its corporate charter or by-laws;
(d) The execution, delivery and performance by it of this
Agreement do not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
in respect of, any governmental authority or agency regulating its banking and
corporate trust activities; and
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(e) This Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding agreement of it, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
Section 12. 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 and, as to any successor
custodian, errors and omissions insurance, (b) theft of documents insurance, and
(c) 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.
Section 13. Periodic Statements. Within 30 days after the
written request of the Agent, ACC, the Borrower or FSA, the Custodian shall
provide to the requesting party at such partyos expense a list of all the
Contracts for which the Custodian holds a Contract File pursuant to this
Agreement. Such list may be in the form of a copy of all Contract Schedules with
manual deletions to specifically denote any Contracts paid off, liquidated,
released or repurchased since the date of this Agreement.
Section 14. Copies Of Contract Documents. Within five (5)
Business Days after the written request of the Agent or FSA, and at the expense
of the requesting party, the Custodian shall provide such Person with copies of
the documents in the Contract Files.
Section 15. Resignation By And Removal Of The Custodian;
Successor Custodian. (a) The Custodian may at any time resign and terminate its
obligations under this Agreement upon at least 60 days prior written notice to
FSA and the Agent. Promptly after receipt of notice of the Custodian's
resignation, ACC with the consent of the Controlling Party and the Agent shall
appoint, by written instrument, a successor custodian. If ACC fails to appoint a
successor within 30 days of the notice of the Custodians resignation, the
Controlling Party and the Agent shall appoint a successor custodian. If a
successor custodian is not appointed in accordance with the foregoing
procedures, the Custodian may petition a court of competent jurisdiction to
appoint a successor custodian. One (1) original counterpart of such instrument
of appointment shall be delivered to each of FSA, the Agent, the Custodian and
the successor custodian.
(b) The Controlling Party and the Agent, with 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 each other party hereto. Promptly after the giving of notice of
removal of the Custodian, ACC with the consent of the Controlling Party and the
Agent shall appoint, by written instrument, a successor custodian. One (1)
original counterpart of such instrument of appointment shall be delivered to
each of FSA, the Agent, the Custodian and the successor custodian.
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(c) In the event of any such resignation or removal, the
Custodian shall promptly transfer to the successor custodian, as directed in
writing by ACC, the Controlling Party and the Agent, all the Contract Files
being administered under this Agreement and, to the extent (if any) and in the
manner directed by ACC, the Controlling Party and the Agent, the Custodian shall
complete the endorsements on the Contracts.
Section 16. Indemnity. The Borrower agrees to indemnify and
hold harmless the Custodian and its directors, officers, agents and employees
against any and all claims, damages, losses, liabilities 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 and the related transaction documents that may be imposed
upon, incurred by or asserted against the Custodian; provided, however, that
this Section 16 shall not relieve the Custodian from liability for its willful
misfeasance, bad faith or gross negligence. The provisions of this Section 16
shall survive the resignation or removal of the Custodian or any successor
custodian and the termination of this Agreement.
Section 17. Limitations Of Liability. (a) The Custodian shall
not be liable to the Borrower, ACC, FSA, the Agent, any Secured Party or any
other Person with respect to any action taken or not taken by it in good faith
in the performance of its obligations under this Agreement. 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) The Custodian may rely, and shall be protected in acting
or refraining to act, upon and need not verify the accuracy of, (i) any oral
instructions from any persons the Custodian believes to be authorized to give
such instructions, who shall only be, with respect to ACC, the Borrower, FSA and
the Agent, persons the Custodian believes in good faith to be Authorized
Representatives and (ii) any written instruction, notice, order, request,
direction, certificate, opinion or other instrument or document 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, ACC, FSA and the Agent,
shall mean signature and presentation by Authorized Representatives whether such
presentation is by personal delivery, express delivery or facsimile.
(c) The Custodian may consult with counsel nationally
recognized in the area of commercial transactions 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 reasonable
reliance, in good faith, and in accordance therewith; provided, however, that if
FSA and the Agent, acting unanimously give instructions to the Custodian or
provide an opinion of counsel selected by them, which in either case conflicts
with any such advice or opinion of counsel, then the Custodian shall follow such
instructions of the FSA and the Agent, acting unanimously (unless such
instructions violate the express terms of this Agreement or violate applicable
law) or such opinion of counsel selected by the Agent, and shall be fully
protected in acting or refraining to act thereon.
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(d) No provision of this Agreement shall require the Custodian
to expend or risk its own funds 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.
Section 18. Term Of Agreement. This Agreement shall be
terminated upon the earliest of (a) the final payment or other liquidation (or
advance with respect thereto) of the last Contract in the Contract Files, (b)
the disposition of all property acquired upon repossession in connection with
any Contract in the Contract Files or (c) the final payment of all obligations
and the termination of any commitment of the Lenders and FSA under the
Transaction Documents.
If any of the circumstances described in the preceding
paragraph shall occur, promptly after written notice from ACC or the Borrower
and the Controlling Party to the Custodian to such effect, all documents
remaining in the Contract Files shall be delivered to the Borrower.
Section 19. Authorized Representatives. The names of the
officers of ACC, the Borrower, FSA and 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 ACC, the Borrower, FSA
and the Agent ("Authorized Representatives") are set forth in Exhibit E hereto,
along with the specimen signature of each such officer. From time to time, ACC,
the Borrower, FSA 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 most recent exhibit until receipt of a
superseding exhibit.
Section 20. Notices. All demands, notices and communications
relating to this Agreement shall be in writing and shall be deemed to have been
duly given when received by the other party or parties at the address shown
below, whether by personal delivery, express delivery or facsimile, or such
other address as may hereafter be furnished to the other party or parties by
like notice. Any such demand, notice or communication hereunder shall be deemed
to have been received on the date delivered to or received at the premises of
the addressee.
If to the Borrower:
ACC Liquidity, LLC
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn:
Telephone:
Telecopy:
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If to ACC:
ACC Consumer Finance Corporation
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn:
Telephone:
Telecopy:
If to the Custodian:
Norwest Bank Minnesota, National Association,
as Custodian
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Corporate Trust Service - Asset-Backed Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Agent:
Credit Suisse First Boston, New York Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Asset Finance Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Alpine:
Alpine Securitization Corp.
c/o Credit Suisse First Boston, New York Branch, as Administrative
Agent
Eleven Madison Avenue
New York, New York 10010
Attn: Asset Finance Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If to FSA:
Financial Security Assurance, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Telephone:
Telecopy:
Section 21. Governing Law; Venue; Consent to Jurisdiction.
(a) This Agreement shall be governed by the laws of the State of Minnesota,
without regard to the conflict of law rules thereof.
(b) Venue for any action brought under this Agreement shall be
in the federal district court sitting in Minneapolis, Minnesota. Each party to
this Agreement hereby consents to the jurisdiction of such court.
Section 22. Assignment. 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, except that Alpine may assign its rights
and delegate its obligations to any Lender or any entity providing a commitment
to purchase interests in Advances or Notes.
Section 23. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, 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.
Section 24. Headings. The section headings are not part of
this Agreement and shall not be used in its interpretation.
Section 25. Third Party Beneficiaries. It is hereby agreed by
the parties hereto that each Purchaser, each Lender and any purchaser of the
Note are, and are intended to be, third party beneficiaries under this
Agreement.
Section 26. Certain Remedies. If, prior to a Remarketing
Date, any Facility Termination Event or, after a Remarketing Date, any Event of
Default shall have occurred and be continuing:
(a) At the direction of the Controlling Party, the Custodian
may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party on default under the U.C.C. (whether or not the
U.C.C. applies to the affected Collateral) and also may at the direction of the
Controlling Party, without notice except as specified below, sell the Collateral
or any part thereof at public or private sale, at any of the Custodian's offices
or elsewhere, for cash, on credit or for future delivery,
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and upon such other terms as the Custodian may deem commercially reasonable. The
Borrower agrees that, to the extent notice of sale shall be required by law, at
least twenty days' prior notice to the Borrower of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Custodian shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Custodian may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(b) The Custodian may (at the direction of the Controlling
Party) give notice to any Lockbox Bank, as provided in the Lockbox Agreement, of
the transfer to the Custodian (for the benefit of the Secured Parties) of
dominion and control over the Lockbox Account. Borrower hereby transfers to the
Custodian (for the benefit of the Secured Parties), effective when the Custodian
shall give notice to the Lockbox Bank as provided in the Lockbox Agreement, the
exclusive dominion and control over the Lockbox Account, and shall take any
further action that the Custodian may reasonably request to effect such
transfer. Borrower shall not terminate the Lockbox Bank or make any change in
its instructions regarding payments to be made by such Lockbox Bank, unless the
Custodian shall have received duly executed counterparts of a new Lockbox
Agreement and copies of such instructions and previously shall have consented in
writing to such termination or change (which, in the case of any such
termination, shall not be unreasonably withheld, conditioned or delayed by the
Custodian).
(c) If, prior to a Remarketing Date, a Facility Termination
Event, or, after a Remarketing Date, an Event of Default, occurs and is
continuing, the Custodian may in its discretion but with the consent of the
Controlling Party and shall, at the direction of the Controlling Party, proceed
to protect and enforce its rights and the rights of the Investors by such
appropriate proceedings as the Custodian or the Controlling Party shall deem
most effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in any Transaction Document or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Custodian by any Transaction
Document or by law.
(d) In case there shall be pending, relative to the Borrower
or any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Collateral proceedings under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Borrower or its property or such other
obligor or Person, or in case of any other comparable judicial proceedings
relative to the Borrower or other obligor upon the Notes, or to the creditors of
property of the Borrower or such other obligor, the Custodian, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Custodian shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
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(i) to file and prove a claim or claims for the whole amount
of principal and Yield owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Custodian (including any claim for
reasonable compensation to the Custodian and each predecessor
Custodian, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances, if any, made, by the Custodian and each predecessor
Custodian, except as a result of negligence, bad faith or wilful
misconduct) and of the Investors allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of Notes in any election of a trustee, a
standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Investors and of the
Custodian on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Custodian or the Investors allowed in any judicial proceedings
relative to the Custodian, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Investors to make
payments to the Custodian, and, in the event that the Custodian shall consent to
the making of payments directly to such Investors, to pay to the Custodian such
amounts as shall be sufficient to cover reasonable compensation to the
Custodian, each predecessor Custodian and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Custodian and each predecessor Custodian except as a result of
negligence, bad faith or wilful misconduct.
(e) Nothing herein contained shall be deemed to authorize the
Custodian to authorize or consent to or vote for or accept or adopt on behalf of
any Investor any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any holder thereof or to authorize the
Custodian to vote in respect of the claim of any Investor in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
(f) All rights of action and of asserting claims under the
Transaction Documents, may be enforced by the Custodian without the possession
of any of the Notes or the production thereof in any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Custodian
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the Custodian, each predecessor Custodian and their respective
agents and attorneys, shall be for the ratable benefit of the holders of the
Notes.
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(g) In any proceedings brought by the Custodian (and also any
proceedings involving the interpretation of any provision of any Transaction
Document, the Custodian shall be held to represent all the Investors, and it
shall not be necessary to make any Investor a party to any such proceedings.
Section 27. Remedies. (a) If, prior to a Remarketing Date,
a Facility Termination Event, or, after a Remarketing Date, an Event of Default,
shall have occurred and be continuing, the Controlling Party may do one or more
of the following (subject to Section 28):
(i) institute Proceedings in its own name and on behalf of the
Secured Parties as trustee of an express trust for the collection of
all amounts then payable on the Notes or under the Receivables
Financing Agreement with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Borrower
and any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure upon the Collateral;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the right
and remedies of the Custodian and the holders of the Note; and
(iv) sell the Collateral or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; provided, however, that after
the Remarketing Date:
(A) if the Insurer is the Controlling Party, the
Insurer may not sell or otherwise liquidate the Collateral
following an Insurance Agreement Event of Default unless
(I) such Insurance Agreement Event of
Default arises from a claim being made on the Policy
or from the insolvency of the Borrower or the Seller,
or
(II) the proceeds of such sale or
liquidation distributable to the Investor are
sufficient to discharge in full all amounts then due
and unpaid upon such Notes for principal and Yield;
or
(B) if the Agent is the Controlling Party, the
Agent may not sell or otherwise liquidate the Collateral
following an Event of Default unless
(x) the holders of 100% of the
outstanding amount of the Notes consent
thereto,
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(y) the proceeds of such sale or
liquidation distributable to the Investors
are sufficient to discharge in full all
amounts then due and unpaid upon such Notes
for principal and interest, or
(z) the Agent determines that the
Collateral will not continue to provide
sufficient funds for the payment of
principal of and interest on the Notes as
they would have become due if the Notes had
not been declared due and payable, and the
Agent obtains the consent of holders of
66-2/3% of the outstanding amount of the
Notes.
In determining such sufficiency or insufficiency with respect
to clause (y) and (z), the Agent may, but need not, obtain and rely upon an
opinion of an independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
Section 28. Optional Preservation of the Receivables. If the
Agent is the Controlling Party and if the Notes have been declared to be due and
payable following (prior to a Remarketing Date) a Facility Termination Event, or
(after a Remarketing Date), an Event of Default, and such declaration and its
consequences have not been rescinded and annulled, the Agent may, but need not,
elect to direct the Custodian to maintain possession of the Collateral. It is
the desire of the parties hereto and the Investors that there be at all times
sufficient funds for the payment of principal of and Yield on the Notes, and the
Agent shall take such desire into account when determining whether or not to
direct the Custodian to maintain possession of the Collateral. In determining
whether to direct the Custodian to maintain possession of the Collateral, the
Agent may, but need not, obtain and rely upon an opinion of an independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Collateral
for such purpose.
Section 29. Withdrawals from Spread Account.
(a) In the event that the Servicer's Certificate with respect
to any Determination Date shall state that the Deficiency Claim Amount (as
defined below) with respect to the related Distribution Date is greater than
zero, then on the Deficiency Claim Date immediately preceding such Distribution
Date, the Custodian shall deliver to the Collateral Agent, the Agent, FSA and
the Servicer, by hand delivery, telex or facsimile transmission, a written
notice (a "Deficiency Notice"). Such Deficiency Notice shall direct the
Collateral Agent under the Spread Account Agreement to remit such Deficiency
Claim Amount (to the extent of the funds available to be distributed pursuant to
the Spread Account Agreement) to the Custodian for deposit in the Collection
Account. The "Deficiency Claim Amount" with respect to any Distribution Date
shall equal the amount by which the amounts described in Sections 5(a) FOURTH
and FIFTH or Sections 5(b) THIRD, FOURTH, SIXTH (x) and SEVENTH exceed the
amounts available for payment of such amounts, as set forth in such clauses.
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(b) Any Deficiency Notice shall be delivered by 10:00 a.m.,
New York City time, on the fourth Business Day preceding such Distribution Date.
The amounts distributed by the Collateral Agent to the Custodian pursuant to a
Deficiency Notice shall be deposited by the Custodian into the Collection
Account.
Section 30. Claims Under Policy.
(a) In the event that the Custodian has determined that there
are insufficient funds on deposit, for the payment of the amounts set forth in
Section 5(a) FOURTH or Sections 5(b) THIRD, FOURTH or SIXTH (x) and, on the
Distribution Date on or immediately following the date that is three months
after the final scheduled maturity date of the last maturing Receivable in the
Total Receivables Pool, SIXTH (y) with respect to any Distribution Date based
upon the amounts available for payment of such amounts, as set forth in such
clauses, the Custodian shall furnish to the Insurer a completed Notice of Claim
under and in accordance with the Policy in the amount of the insufficiency (the
"Policy Claim Amount") no later than the Draw Date. Amounts paid by the
Insurer pursuant to a claim submitted under this Section 29(a) shall be paid by
the Custodian to the Agent for payment to the Investors or in respect of the
payment of the Post Termination Fee, to the Facility Agent for payment pursuant
to the Fee Letter. Any payment made by the Insurer under the Policy shall be
applied solely to the payment of the Notes and the Post Termination Fee, and for
no other purpose.
(b) Any and all amounts claimed under the Policy and disbursed
by the Custodian from claims made under the Policy shall not be considered
payment by the Borrower with respect to such Notes or otherwise, and shall not
discharge the obligations of the Borrower with respect thereto. FSA shall, to
the extent it makes any payment with respect to the Notes or the Post
Termination Fee, become subrogated to the rights of the recipients of such
payments to the extent of such payments. Subject to and conditioned upon any
payment with respect to the Notes or the Post Termination Fee by or on behalf of
FSA, the Custodian shall assign to FSA all rights to the payment of Yield or
principal with respect to the Notes or the Post Termination Fee which are then
due for payment to the extent of all payments made by FSA, and FSA may exercise
any option, vote, right, power or the like with respect to the Notes to the
extent that it has made payment of principal and Yield pursuant to the Policy.
To evidence such subrogation, the Custodian shall note FSA's rights as subrogee
upon the Note Register upon receipt from FSA of proof of payment by FSA under
the Policy. The foregoing subrogation shall in all cases be subject to the
rights of the Investors to receive all payments in respect of the Notes.
(c) The Custodian shall keep a complete and accurate record of
all funds paid by FSA for Yield and principal paid in respect of the Notes. FSA
shall have the right to inspect such records at reasonable times upon one
Business Day's prior notice to the Custodian.
(d) The Custodian shall be entitled to enforce on behalf of
the Investors the obligations of FSA under the Policy. Notwithstanding any other
provision of any Transaction Document, the Investors are not entitled to
institute proceedings directly against FSA.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to hereunto set their hand as of the day and year
first above written.
FINANCIAL SECURITY ASSURANCE, INC.
By: /s/
----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Agent
By: /s/
----------------------------------------
Name:
Title:
By: /s/ XXXX X. XXXX
----------------------------------------
Name: Xxxx X. Xxxx
Title: Associate
26
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Custodian
By: /s/ XXXXX XXX XXXXX
----------------------------------------
Name: Xxxxx Xxx Xxxxx
Title: Corporate Trust Officer
ACC LIQUIDITY, LLC
By: ACC Funding Corp., its Manager
By: /s/
--------------------------------
Name:
Title:
ACC CONSUMER FINANCE CORPORATION
By: /s/
----------------------------------------
Name:
Title:
27
EXHIBIT A
CONFIRMATION AND NOTICE OF PLEDGE
To: Norwest Bank Minnesota, National Association,
as Custodian
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services - Asset-Backed Administration
Gentlemen:
The undersigned hereby notifies you, as Custodian, that the
Contracts and related Contract Files specified in the attached Schedule A (the
"Pledged Contracts") have been pledged by us pursuant to a Receivables Financing
Agreement (the "Security Agreement") dated as of March , 1997 among Alpine
Securitization Corp. (the "Pledgee"), Credit Suisse First Boston, New York
Branch, Norwest Bank Minnesota, National Association, ACC Liquidity, LLC (the
"Borrower") and ACC Consumer Finance Corporation ("ACC"), and are to be held by
you as bailee of, and agent for, the Pledgee as secured party pursuant to the
provisions of the Custodial Agreement dated March __, 1997 among the Pledgee,
Credit Suisse First Boston, New York Branch, Financial Security Assurance, Inc.,
the Borrower, ACC and Norwest Bank Minnesota, National Association, until
released or transferred as provided in the Custodial Agreement. Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Custodial Agreement.
A security interest in the Pledged Contracts has been granted
to the Pledgee, a corporation having an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, pursuant to the Security Agreement. You are instructed to enter
the Pledgee's name and address in your records as the pledgee of such Pledged
Contracts and to promptly provide to the Pledgee an acknowledgment of this
Notice of Pledge and Notice of Pledge by signing in the space provided below and
delivering an acknowledged copy of this Notice of Pledge and Notice to the
Pledgee at the above address. Such acknowledgment will serve to confirm that
this Notice of Pledge and Notice of Pledge has been duly received by you and
that (i) the related Contract Files are being held by you as bailee of, and
agent for, the Pledgee and (ii) you have duly reflected on your records that the
Pledgee has been granted a security interest in and to such Contracts and
related Contract Files all in accordance with the provisions of the Custodial
Agreement.
ACC CONSUMER FINANCE CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
A-1
28
ACKNOWLEDGED BY:
NORWEST BANK MINNESOTA, National
Association, as Custodian
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Date:
-----------------------------
A-2
29
EXHIBIT B
No.
----
RECEIPT CERTIFICATION
Credit Suisse First Boston,
New York Branch
Attn:
--------------------------------
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Financial Security Assurance, Inc.
Attn:
--------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial Agreement (the "Custodial Agreement") dated
March ___, 1997 among Financial Security Assurance, Inc., Credit Suisse
First Boston, New York Branch, ACC Liquidity, LLC, and ACC Consumer
Finance Corporation and Norwest Bank Minnesota, NationalAssociation, as
Custodian
Aggregate Contract Balance
of the Contracts on the
Contract Schedule dated
, 199 : $
-------------------- -- ------------
Gentlemen:
In accordance with the provisions of Section 3 of the
Custodial Agreement, the undersigned, as Custodian, hereby certifies that, as to
each Contract listed in the Contract Schedule dated ____________ __, 199_ (other
than any Contract paid in full or any Contract listed on an attachment hereto),
it is in receipt of a Contract File including the fully executed Contract,
endorsed as provided in the definition of "Contract File" in Section 1 of the
Custodial Agreement and the name of the Obligor on and the Amount Financed under
each such executed Contract conforms to the infomration contained in the
attachment, [except for each Contract File listed on the Schedule of Exceptions
attached hereto]. The Custodian has made no independent examination of such
documents beyond the review specifically required in the Custodial Agreement.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any such documents contained in
each or any of the Contracts identified on the Contract Schedule, (ii) the
collectibility, insurability, effectiveness or suitability of any such Contract
and (iii) whether any document has been originally executed.
B-1
30
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Custodial Agreement.
NORWEST BANK MINNESOTA, National
Association, as Custodian
By:
--------------------------------------
Print Name:
-------------------------------
Title:
-----------------------------------
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31
EXHIBIT C
No.
-----
COLLATERAL RECEIPT
Credit Suisse First Boston,
New York Branch
Attn:
----------------------------------
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Financial Security Assurance, Inc.
Attn:
----------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial Agreement (the "Custodial Agreement") dated
March __, 1997, among Alpine Securitization Corp.,
Financial Security Assurance, Inc., Credit Suisse First Boston,
New York Branch, [ ], ACC Consumer
Finance Corporation and Norwest Bank Minnesota, National
Association, as Custodian
Aggregate Contract Balance
of the Contracts on the
Contract Schedule dated
, 199 : $
----------- -- - ---------------------
Gentlemen:
In accordance with the provisions of Section 3 of the
Custodial Agreement, the undersigned, as Custodian, hereby certifies that, as to
each Contract listed in the Contract Schedule dated ____________ __, 199_ (other
than any Contract paid in full or any Contract listed on an attachment hereto),
it has reviewed the documents delivered to it pursuant to Section 2 of the
Custodial Agreement and has determined that, excepting the Deficiencies, if any,
described on the annex hereto (i) all such documents are in its possession, (ii)
such documents have been reviewed by it and have not been materially mutilated,
damaged or torn and relate to such Contract and (iii) with respect to the name
and mailing address of the Obligor, the account number, the Contract Interest
Rate, the amount of the Scheduled Payment and the original term of the Contract,
the information set forth in the Contract Schedule respecting such Contract
accurately reflects the information set forth in the Contract. The Custodian has
made no independent examination of such documents beyond the review specifically
required in the Custodial Agreement. The Custodian makes no
C-1
32
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any such documents contained in each or any of the Contracts
identified on the Contract Schedule, (ii) the collectibility, insurability,
effectiveness or suitability of any such Contract and (iii) whether any document
has been originally executed.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Custodial Agreement.
NORWEST BANK MINNESOTA, National Association,
as Custodian
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
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EXHIBIT D
REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS
To: Norwest Bank Minnesota, N.A., as Custodian
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Service - Asset-Backed Administration
Re: Custodial Agreement (the "Custodial Agreement") dated
March __, 1997, among Alpine Securitization Corp., Financial Security
Assurance, Inc., Credit Suisse First Boston, New York Branch, ACC
Liquidity, LLC, ACC Consumer Finance Corporation and Norwest Bank
Minnesota, National Association, as Custodian
Gentlemen:
In connection with the administration of the Contracts held by
you as the Custodian for the Agent and the Insurer, we request the release, and
acknowledge receipt, of the (Contract File/specify documents) for the Contract
described below, for the reason indicated.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Custodial Agreement.
Obligor's Name, Address & Zip Code:
Contract Number:
Reason for Requesting Documents (check one or more)
______ 1. Contract Paid in Full
______ 2. Contract Repurchased
______ 3. Contract Liquidated
______ 4. Contract in Repossession
D-2
34
______ 5. Other (explain)
If item 1, 2 or 3 above is checked, and if all or part of the Contract File was
previously released to us, please release to us our previous receipt on file
with you, as well as any additional documents in your possession relating to the
above specified Contract.
The undersigned hereby certifies that if a release has been requested due to
payment in full of a Receivable or repurchase upon breach of a representation or
warranty, all amounts received in connection therewith which are required to be
deposited in the Collection Account pursuant to Section 8.18 of the Receivables
Financing agreement have been so deposited.
If item 4 or 5 above is checked, upon our return of the above document(s) to you
as the Custodian, please acknowledge your receipt by signing in the space
indicated below, and returning this form.
ACC CONSUMER FINANCE CORPORATION
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
DOCUMENTS RETURNED TO THE CUSTODIAN:
NORWEST BANK MINNESOTA, National
Association, as Custodian
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Date:
-------------------------------------
D-2
35
AUTHORIZED REPRESENTATIVES
A. ACC CONSUMER FINANCE CORPORATION
Name Specimen Signature
Xxxx X. Xxxxxxx /s/ XXXX X. XXXXXXX
----------------------- -----------------------------
Xxxxxx Xxxxxxx
----------------------- -----------------------------
B. ACC LIQUIDITY LLC
Name Specimen Signature
Xxxx X. Xxxxxxx /s/ XXXX X. XXXXXXX
--------------------- -----------------------------
Xxxxxx Xxxxxxx
--------------------- -----------------------------
C. FINANCIAL SECURITY ASSURANCE
Name Specimen Signature
----------------------- -----------------------------
----------------------- -----------------------------
D. CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
Name Specimen Signature
--------------------- -----------------------------
--------------------- -----------------------------
