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EXHIBIT 4.4
CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT, dated as of December 1, 2000 (as amended or
otherwise modified from time to time, this "Agreement"), among PF FUNDING II,
LLC, as Transferor (the "Transferor"), ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ VEHICLE RECEIVABLES OWNER
TRUST 2000-2, as Issuer (the "Issuer"), FINANCIAL SECURITY ASSURANCE INC., as
Insurer (the "Insurer"), and ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee (the "Indenture Trustee") and PEOPLEFIRST FINANCE, LLC, as
Custodian (the "Custodian").
A. Pursuant to the terms of the Sale and Servicing Agreement dated as
of December 1, 2000, among the Issuer, the Transferor, PeopleFirst Finance, LLC,
as Seller and Servicer (the "Seller" or "Servicer"), ML Asset Backed
Corporation, as Depositor and the Indenture Trustee (the "Sale and Servicing
Agreement"), the Seller will sell to the Transferor all of its right, title and
interest in the Receivables.
B. Pursuant to the terms of the Sale and Servicing Agreement (i) the
Transferor will transfer all of its right, title and interest in the Receivables
to the Depositor and (ii) the Depositor will transfer all of its right, title
and interest in the Receivables to the Issuer.
C. Pursuant to the Indenture dated as of December 1, 2000, between the
Issuer and the Indenture Trustee (the "Indenture"), the Issuer will pledge to
the Indenture Trustee all of its right, title and interest in the Receivables.
D. The Custodian is a California limited liability company; and
E. Pursuant to terms of the Sale and Servicing Agreement, the Servicer
intends to deliver to the Custodian certain documents specified in this
Agreement (collectively, the "Collateral"), and the Servicer desires the
Custodian take possession of the Collateral as the custodian for, and bailee of,
(i) the Indenture Trustee for the benefit of the Noteholders and the Insurer,
or, (ii) after all unpaid principal and interest on the Notes and all amounts
owing to the Insurer have been paid in full, the Owner Trustee for the benefit
of the Certificateholders, in accordance with the terms and conditions of this
Agreement in order to perfect the security interest of Indenture Trustee or the
Owner Trustee, as applicable; and
The parties, intending to be legally bound, hereby agree as follows:
1. Definitions. Terms not defined in this Agreement shall have the
respective meanings assigned to them in the Sale and Servicing Agreement or the
Indenture. The following terms shall have the following meanings when used in
this Agreement:
"Authorized Representatives" shall have the meaning set forth in
Section 19.
"Certification" has the meaning set forth in Section 4.
"Collateral" has the meaning set forth in the Recitals hereto.
"Contract" means a motor vehicle loan evidenced by a note and security
agreement.
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"Deficiency" means a failure of a document to correspond to the
information on the Schedule of Receivables or the absence of a required document
from a Custodian's Receivable File pursuant to Section 2.
"FDI" means [ ].
"Indenture" has the meaning assigned to such term in the Recitals
hereto.
"Insurance Policy" means with respect to a Contract and Financed
Vehicle, any insurance policy required to be maintained by the Obligor that
covers physical damage to and theft of the Financed Vehicle or any liability
arising out of the use of such Financed Vehicle.
"Lien Certificate" means with respect to a Financed Vehicle, an
original certificate of title, certificate of lien or other notification
(electronic or otherwise) issued by the registrar of titles of the applicable
state to a secured party which indicates that the lien of the secured party on
the Financed Vehicle is recorded on the original certificate of title. In any
jurisdiction in which the original certificate of title is required to be given
to the Obligor, the term "Lien Certificate" shall mean only a certificate or
notification (electronic or otherwise) issued to a secured party. Notification
of an electronic recordation of FDI indicating that the lien of the secured
party on the Financed Vehicle is recorded on the original Certificate of Title
shall be deemed to satisfy this definition.
"PeopleFirst" means PeopleFirst Finance, LLC.
"Receivable Files" means, with respect to a Financed Vehicle, those
documents listed in Section 3 of this Agreement that are delivered to the
Custodian and all documents subsequently delivered to the Custodian pursuant to
the last sentence of Section 3.
"Sale and Servicing Agreement" has the meaning assigned to such term in
the Recitals hereto.
"Schedule of Receivables" means the schedule of Receivables, in both
hard copy and floppy disk, to be annexed hereto as Exhibit 5, such schedule
setting forth the following information with respect to each Receivable:
(i) the loan number and name of the related Obligor;
(ii) the original principal amount;
(iii) the Initial Cutoff Date or the related Subsequent Cutoff Date,
as applicable;
(iv) the principal amount outstanding as of the Initial Cutoff Date
or the related Subsequent Cutoff Date, as applicable;
(v) the interest rate (APR);
(vi) the original term to maturity;
(vii) the remaining term to maturity as of the Initial Cutoff Date
or the related Subsequent Cutoff Date, as applicable; and
(viii) the day of the month on which the scheduled monthly payment of
principal and interest are required to be made.
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2. Appointment of Custodian. The Transferor, the Indenture Trustee, the
Issuer and the Insurer hereby revocably appoint the Custodian, and the Custodian
hereby accepts such appointment, to act exclusively as the agent for the
Indenture Trustee, on behalf of the Noteholders and the Insurer until the Notes
are paid in full, the Insurance and Indemnity Agreement has expired by its terms
and all amounts owing to the Insurer have been paid in full and thereafter on
behalf of the Issuer as custodian of the documents and instruments listed in
Section 3 hereof.
In performing its duties hereunder, the Custodian agrees to act with
reasonable care, using that degree of skill and attention that a commercial bank
acting in the capacity of a custodian would exercise with respect to files
relating to comparable automotive or other receivables that it services or holds
for itself or others.
3. Delivery of Receivable Files. The Custodian hereby certifies that it
has received as custodian for, and bailee of (i) the Indenture Trustee for the
benefit of the Noteholders and the Insurer or (ii) after all unpaid principal
and interest on the Notes and all amounts owing to the Insurer have been paid in
full and the Insurance and Indemnity Agreement has expired by its terms, the
Issuer, the following documents pertaining to each of the Receivables identified
in a Schedule of Receivables for the initial transfer and each subsequent
transfer, a copy of which Schedule of Receivables shall be provided to the
Custodian, in a form acceptable to the Custodian, on computer readable disk or
via electronic transfer by the Servicer:
(a) the executed cancelled draft for the related Contract;
(b) a copy of the Note and Security Agreement for such
Contract;
(c) the original certificate of title or, if not yet received,
evidence that an application therefor has been submitted with the appropriate
authority, a guaranty of title from a dealer or such other document (electronic
or otherwise, as used in the applicable jurisdiction) that the Servicer shall
have on file in accordance with the Servicer's customary procedures, evidencing
the security interest of the originator;
(d) the originals of all assumption, consolidation, extension,
modification or waiver agreements, if any, relating to such Receivable;
(e) any other documents that the Servicer shall keep on file,
in accordance with its customary procedures, or reasonably required by the
Issuer, from time to time to be kept on file, relating to a Receivable, the
related Obligor or the related Financed Vehicle; and
(f) any additional original loan documents evidencing any
assumption, consolidation, extension, modification or waiver of a Receivable
approved by the Servicer.
4. Certification. The Custodian shall deliver, on the Closing Date and
on each Subsequent Transfer Date, to the Indenture Trustee a certification (the
"Certification"), in substantially the form annexed hereto as Exhibit 1, to the
effect that (except as described on the attached exception report) the Custodian
has received a Custodian's Receivable File for each Receivable listed on the
related Schedule of Receivables and it has received (i) all documents required
to be delivered to it pursuant to Section 3 of this Agreement in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged, torn or otherwise physically altered and relate to such Receivable
identified on the Schedule of Receivables, (iii) based on its examination and
only as to the foregoing documents, the information set forth in items (i),
(ii), (v) and (vi) of the definition of Schedule of Receivables respecting such
Receivable accurately reflects the information on the Schedule of Receivables
and (iv) based on its
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examination, the Contract is an executed original counterpart. The Custodian
shall include in the Certification any Deficiencies revealed in such review
attached as an exception report to the Certification.
5. Review of Items Constituting the Receivable Files.
(a) Prior to the Closing Date and each Subsequent Transfer
Date, as applicable, the Custodian shall cause the Indenture Trustee or such
other person acceptable to the Insurer to conduct a physical inventory of the
Receivable Files in order to confirm that the Issuer is in possession of a
Receivable File for each Receivable listed in the Schedule of Receivables and to
perform a limited review of at least [300] of the Receivable Files relating to
the Receivables transferred on the Closing Date and at least [100] of the
Receivable Files relating to the Subsequent Receivables transferred on each
Subsequent Transfer Date to determine that each Receivable File so reviewed
includes (i) the executed cancelled check for the related Contract; (ii) a copy
of the Note and Security Agreement for such Contract; (iii) the original
certificate of title or, if not yet received, evidence that an application
therefor has been submitted with the appropriate authority, a guaranty of title
from a dealer or such other document (electronic or otherwise, as used in the
applicable jurisdiction) that the Servicer shall have on file in accordance with
the Servicer's customary procedures, evidencing the security interest of the
originator; (iv) the originals of all assumption, consolidation, extension,
modification or waiver agreements, if any, relating to such Receivable; (v) any
other documents that the Servicer shall keep on file, in accordance with its
customary procedures, or reasonably required by the Issuer, from time to time to
be kept on file, relating to a Receivable, the related Obligor or the related
Financed Vehicle; and (vi) any additional original loan documents evidencing any
assumption, consolidation, extension, modification or waiver of a Receivable
approved by the Servicer. As evidence of the performance of such inventory and
review, prior to the Closing Date and each Subsequent Transfer Date, as
applicable, the Indenture Trustee or such other person shall execute and deliver
to (i) the Indenture Trustee for the benefit of the Noteholders and the Insurer,
or, (ii) after all unpaid principal and interest on the Notes and all amounts
owing to the Insurer have been paid in full and the Insurance and Indemnity
Agreement has expired by its terms, the Issuer and the Owner Trustee, on behalf
of the Issuer, an Acknowledgment in the form of Exhibit 6 hereto. If such review
reveals, in the Insurer's opinion, an unsatisfactory number of missing items the
Insurer in its sole discretion may require a full review of every Receivable
File by the Indenture Trustee or such other party acceptable to the Insurer.
(b) On or before the Closing Date and each Subsequent Transfer
Date, as applicable, the Custodian shall deliver to the Indenture Trustee a list
of all Receivables with respect to which a Lien Certificate, showing the Issuer
as secured party, was not included in the related Receivable File as of the
Closing Date or such Subsequent Transfer Date, as the case may be. No later than
180 days after the Closing Date or such Subsequent Transfer Date, as the case
may be, the Indenture Trustee shall review the Receivable File for each
Receivable that is identified in such list as not including a Lien Certificate
in the related Receivable File to confirm that such Receivable File contains a
Lien Certificate showing the Issuer as secured party and shall notify the
Indenture Trustee, the Insurer, the Owner Trustee and the Seller of the results
of such review, including the failure of any such Receivable File to contain
such a Lien Certificate.
6. Obligations of the Custodian.
(a) The Custodian shall maintain the items constituting the
Receivable Files at its principal office or, subject to the prior written
consent of the Insurer (so long as no Insurer Default shall have occurred and be
continuing), at such other office as shall from time to time be identified to
the Indenture Trustee and the Insurer, and the Custodian will hold the items
constituting the Receivable Files in such office on behalf of the Indenture
Trustee and the Insurer clearly segregated from any other instruments and files
on its records, including other instruments and files held by the Custodian with
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respect to other trusts established by the Seller, and in compliance with
Section 3(c) hereof. The Custodian shall segregate and maintain continuous
custody of all items constituting the Receivable Files in secure, fire rated
facilities in accordance with customary standards of a commercial bank acting in
the capacity of custodian with respect to similar receivables. The Custodian
shall hold the Receivable Files on behalf of (i) the Indenture Trustee for the
benefit of the Noteholders and the Insurer, or, (ii) after all unpaid principal
and interest on the Notes and all amounts owing to the Insurer have been paid in
full and the Insurance and Indemnity Agreement has expired by its terms, the
Issuer, and maintain such accurate and complete accounts, records and computer
systems pertaining to each Receivable File as will enable the Issuer to comply
with the terms and conditions of the Sale and Servicing Agreement. Each
Receivable shall be stamped on both the first page and the signature page (if
different) in accordance with the instructions from time to time provided by the
Insurer, and the form and content of the stamp shall be acceptable to the
Insurer. Each Receivable shall be identified on the books and records of the
Custodian in a manner that (i) is consistent with the practices of a commercial
bank acting in the capacity of custodian with respect to similar receivables,
(ii) indicates that the Receivable is held by the Custodian on behalf of the
Indenture Trustee for the benefit of the Noteholders and the Insurer, or, after
all unpaid principal and interest on the Notes and all amounts owing to the
Insurer have been paid in full and the Insurance and Indemnity Agreement has
expired by its terms, the Issuer, and (iii) is otherwise necessary, as
reasonably determined by the Custodian, to comply with the terms of this
Custodial Agreement. The Custodian shall conduct, or cause to be conducted,
periodic physical inspections of the Receivable Files held by it under this
Custodial Agreement, and of the related accounts, records and computer systems,
in such a manner as shall enable the Issuer Secured Parties, the Owner Trustee
on behalf of the Issuer, the Indenture Trustee and the Custodian to verify the
accuracy of the Custodian's inventory and recordkeeping. Such inspections shall
be conducted at such times, in such manner and by such persons including,
without limitation, independent accountants, as (i) the Indenture Trustee for
the benefit of the Noteholders and the Insurer, or, (ii) after all unpaid
principal and interest on the Notes and all amounts owing to the Insurer have
been paid in full and the Insurance and Indemnity Agreement has expired by its
terms, the Owner Trustee or the Indenture Trustee may request, and the cost of
such inspections shall be borne directly by the Custodian and not by the Issuer.
The Custodian shall promptly report to the Issuer Secured Parties, the Owner
Trustee and the Indenture Trustee any failure on its part to hold the Receivable
Files and maintain its accounts, records and computer systems as herein provided
and promptly take appropriate action to remedy any such failure. Notwithstanding
the above, the Custodian shall make microfiche or other electronic copies of the
Receivable Files and may maintain such copies of the Receivable Files in lieu of
maintaining physical possession of the Receivable Files; provided, however, that
such copies shall duplicate the entire contents of each Receivable File and,
provided further, that the Custodian shall at all times maintain the executed
cancelled check for the related contract and the original certificate of title
or, if not yet received, evidence that an application therefor has been
submitted with the appropriate authority, a guaranty of title from a dealer or
such other document (electronic or otherwise, as used in the applicable
jurisdiction) that the Servicer shall have on file in accordance with the
Servicer's customary procedures, evidencing the security interest of the
originator and the originals of all assumption, consolidation, extension,
modification or waiver agreements, if any, relating to such Receivable. Such
original sales contracts and promissory notes and Lien Certificate and
application therefor shall be stored in a fireproof vault.
(b) With respect to the documents constituting each
Custodian's Receivable File that are delivered to the Custodian, the Custodian
shall (i) act exclusively as the custodian for, and the bailee of, the Indenture
Trustee on behalf of the Noteholders and the Insurer and the Owner Trustee on
behalf of the Certificateholders, (ii) hold all documents constituting such
Custodian's Receivable File received by it for the exclusive use and benefit of
the Indenture Trustee, and (iii) make disposition thereof only in accordance
with the terms of this Agreement or with written instructions furnished by the
Controlling Party.
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(c) In the event that (i) the Indenture Trustee or the
Custodian shall be served by a third party with any type of levy, attachment,
writ or court order with respect to any Custodian's Receivable File or a
document included within a Custodian's Receivable File or (ii) a third party
shall institute any court proceeding by which any Custodian's Receivable File or
a document included within a Custodian's Receivable File shall be required to be
delivered otherwise than in accordance with the provisions of this Agreement,
the party or parties 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 the 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 Custodian's
Receivable File or a document included within such Custodian's 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 Issuer.
(d) The Custodian shall, in general, attend to all
non-discretionary details in connection with maintaining custody of the
Receivables Files on behalf of (i) the Indenture Trustee for the benefit of the
Noteholders and the Insurer or (ii) after all unpaid principal and interest on
the Notes and all amounts owing to the Insurer have been paid in full and the
Insurance and Indemnity Agreement has expired by its terms, the Issuer. In
addition, the Custodian shall assist the Indenture Trustee and the Owner
Trustee, on behalf of the Issuer, generally in the preparation of any routine
reports to Noteholders, Certificateholders or to regulatory bodies, to the
extent necessitated by the Custodian's custody of the Receivable Files.
7. Release of Receivable File. If the Custodian is not the Servicer,
from time to time and as appropriate for the foreclosure or servicing of any of
the Receivables, the Custodian is hereby authorized, upon receipt of a written
request of the Servicer acknowledged by the Indenture Trustee in substantially
the form annexed as Exhibit 2 (a "Request for Release and Receipt of
Documents"), to release to the Servicer by the close of business on the second
Business Day following such request, the related Custodian's Receivable File or
the documents from a Custodian's Receivable File set forth in such request and
receipt. All documents so released to the Servicer shall be held by the Servicer
in trust for the benefit of the Indenture Trustee in accordance with the Sale
and Servicing Agreement. The Servicer shall return to the Custodian each and
every document previously requested from the Custodian's Receivable File when
the Servicer's need therefore in connection with such foreclosure or servicing
no longer exists, unless the Receivable shall be liquidated, in which case, upon
receipt of a certification to this effect from the Servicer to the Custodian
acknowledged by the Indenture Trustee in substantially the form annexed as
Exhibit 2, the Servicer's prior receipt shall be returned by the Custodian to
the Servicer. The Indenture Trustee agrees to acknowledge, within one Business
Day of receipt, any Request for Release and Receipt of Documents properly
completed and submitted by the Servicer, and not unreasonably to withhold any
such acknowledgment.
8. Release Upon Redelivery or Payment. If the Custodian is not the
Servicer upon the redelivery of any Receivable pursuant to the Sale and
Servicing Agreement or the payment in full of any Receivable, which shall be
evidenced by the delivery to the Custodian of a Request for Release and Receipt
of Documents in the form of Exhibit 2 executed by the Servicer and acknowledged
by the Indenture Trustee, the Custodian shall promptly release the Custodian's
Receivable File to the Servicer.
9. Examination of Receivable Files. Upon reasonable prior written
notice to the Custodian (but no less than one Business Day), the Indenture
Trustee and the Insurer 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 Receivables.
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10. Transfer of Receivable Files Upon Termination. If the Custodian is
furnished with written notice and satisfactory evidence from the Indenture
Trustee that (i) all unpaid principal and interest on the Notes and all amounts
owing to the Insurer have been paid in full and the Insurance and Indemnity
Agreement has expired by its terms and (ii) from the Owner Trustee that the
trust has been terminated, the Custodian shall, upon written request of the
Indenture Trustee release to such Persons as the Owner Trustee shall designate
such Receivable Files relating to such Receivables and the Custodian shall
endorse the Receivable contracts only as, and if, the Owner Trustee shall
request in writing.
11. 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,
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.
12. Periodic Statements. The Custodian by electronic transfer shall
provide monthly to the Indenture Trustee a list of all the Receivables for which
the Custodian holds a Custodian's Receivable File pursuant to this Agreement.
Such list shall include the loan number and name of the related Obligor and may
be in the form of a copy of the Schedule of Receivables with manual deletions to
specifically denote any Receivables redelivered since the date of this
Agreement.
13. Copies of Documents. If the Custodian is not the Servicer, within
ten days after the written request and at the expense of the Servicer, the
Custodian shall provide the Indenture Trustee with copies of the documents in
the Receivable Files.
14. Resignation by and Removal of the Custodian; Successor Custodian;
Amendment
(a) Prior to an Insurer Default, this Custodial Agreement may
be amended at any time by the mutual agreement of the Insurer, the Indenture
Trustee and the Custodian and may be terminated by either the Insurer or the
Custodian by giving written notice to the other parties, such termination to
take effect no sooner than thirty (30) days after the date of such notice;
provided, however, that the Insurer may terminate this Custodial Agreement at
any time in its sole discretion and any termination by the Insurer shall take
effect immediately. If an Insurer Default shall have occurred and be continuing,
this Custodial Agreement may be amended at any time by mutual agreement of the
parties hereto and may be terminated by any party by giving written notice to
the other parties, such termination to take effect no sooner than thirty (30)
days after the date of such notice. Upon any termination or amendment of this
Custodial Agreement, the Indenture Trustee on behalf of (i) the Indenture
Trustee for the benefit of the Noteholders and the Insurer, or, (ii) after all
unpaid principal and interest on the Notes and all amounts owing to the Insurer
have been paid in full and the Insurance and Indemnity Agreement has expired by
its terms, the Issuer, in the case of amendments, and the party seeking
termination, in the case of terminations, shall give written notice to Standard
& Poor's and Moody's (the "Rating Agencies"). Immediately after receipt of
notice of termination of this Custodial Agreement, the Custodian shall deliver
the Receivable Files to (i) the Indenture Trustee for the benefit of the
Noteholders and the Insurer, or, (ii) after all unpaid principal and interest on
the Notes and all amounts owing to the Insurer have been paid in full and the
Insurance and Indemnity Agreement has expired by its terms, the Issuer, or the
Indenture Trustee's agent, at such place or places as the Indenture Trustee, or
the Insurer, in the case of a termination by the Insurer, may designate, and the
Indenture Trustee, or its agent, as the case may be, shall act as custodian for
such Receivables Files on behalf of (i) the Indenture Trustee for the benefit of
the Noteholders and the Insurer, or, (ii) after all unpaid principal and
interest on the Notes and all amounts owing to the Insurer have been paid in
full and the Insurance and Indemnity Agreement has expired by its terms, the
Issuer until such time as a successor custodian, approved by the Insurer, has
been appointed. If, within twenty-four (24) hours after the termination of this
Custodial Agreement, the Custodian has not
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delivered the Receivables Files in accordance with the preceding sentence, the
Insurer or, if an Insurer Default shall have occurred and be continuing, the
Indenture Trustee, may enter the premises of the Custodian and remove the
Receivables Files from such premises. In connection with the administration of
this Agreement, the parties may agree from time to time upon the interpretation
of the provisions of this Agreement as may in their joint opinion be consistent
with the general tenor and purposes of this Agreement, any such interpretation
to be signed by all parties and annexed hereto. If both the Servicer and the
Controlling Party fail to appoint a successor custodian pursuant to the terms
hereof, the Custodian may petition a court of competent jurisdiction to appoint
a successor custodian. One original counterpart of such instrument of
appointment shall be delivered to the Servicer, Insurer and Indenture Trustee
and the successor custodian.
If the Controlling Party fails to appoint a successor within 30 days,
the Servicer shall appoint a successor custodian. If both the Servicer and the
Controlling Party fail to appoint a successor custodian pursuant to the terms
hereof, the Custodian may petition a court of competent jurisdiction to appoint
a successor custodian. One original counterpart of such instrument of
appointment shall be delivered to the Servicer, Insurer and Indenture Trustee
and the successor custodian.
(b) No resignation or removal of the Custodian (except removal
by the Insurer) and no appointment of a successor custodian under this Section
15 shall become effective until the acceptance of a successor custodian
hereunder.
(c) In the event of any such resignation or removal, the
Custodian shall promptly transfer to the successor custodian, as directed in
writing by the Controlling Party, all of the Receivable Files being administered
pursuant to this Agreement.
15. Indemnity. The Custodian agrees to indemnify the Issuer, the Owner
Trustee, the Indenture Trustee and the Insurer for any and all liabilities,
obligations, losses, damage, payments, costs or expenses of any kind whatsoever
(including the fees and expenses of counsel) that may be imposed on, incurred or
asserted against the Issuer, the Owner Trustee, the Indenture Trustee or the
Insurer as the result of any act or omission in any way relating to the
maintenance and custody by the Custodian of the Receivable Files; provided,
however, that the Custodian shall not be liable for any portion of any such
liabilities, obligations, losses, damages, payments or costs or expenses due to
the willful misfeasance, bad faith or gross negligence of the Indenture Trustee,
the Issuer or the Owner Trustee on behalf of the Issuer.
16. Advise of Counsel. The Custodian may consult with counsel selected
by it with reasonable care and 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.
17. Term of Agreement. This Custodial Agreement shall become effective
as of the date hereof and shall continue in full force and effect until
terminated as provided herein.
18. Authorized Representatives. The names of the officers of the
Custodian, Indenture Trustee, Owner Trustee and the Insurer 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 such
parties ("Authorized Representative") are set forth on Exhibit 3, along with the
specimen signature of each such officer. From time to time, the Owner Trustee,
Indenture Trustee, Insurer and Servicer 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.
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19. Notices. All demands, notices and communications relating to this
Agreement shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, return receipt requested, or by
overnight courier, or, if by other means, when received by the other party or
parties at the address shown below, 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 (as evidenced, in the
case of registered or certified mail, by the date noted on the return receipt).
If to the Seller, Servicer or Custodian:
PeopleFirst Finance, LLC
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Insurer:
Financial Security Assurance Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Transaction Oversight Department
Re: PeopleFirst
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇; (▇▇▇) ▇▇▇-▇▇▇▇
If to the Indenture Trustee:
▇▇▇▇▇ Fargo National Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, MAC N9311-161
Attention: Corporate Trust Services - Asset Backed Administration
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Owner Trustee:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporation Trust Administration
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
20. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to conflict
of laws applied in the State of New York.
9
10
21. 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 as otherwise set forth in this Agreement.
22. 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.
23. Headings. The Section headings are not part of this Agreement and
shall not be used in its interpretation.
24. Use of Words. The definitions set forth in this Agreement include
both the singular and plural.
25. Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a)
this Custodial Agreement is executed and delivered by Wilmington Trust Company,
not individually or personally but solely as Owner Trustee of the
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Vehicle Receivables Owner Trust 2000-2, in the exercises of the
powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company, but is made and intended for the purpose
of binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Custodial Agreement or any other related
documents.
26. Nonpetition. Notwithstanding any prior termination of this
Agreement, the Custodian shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the Transferor or
the Issuer, acquiesce, petition or otherwise invoke or cause any of the
Transferor or the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Transferor or the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of any of the Transferor or the Issuer or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Transferor or the Issuer.
27. Custodian Fee. For its services under this Agreement, the Custodian
shall be entitled to reasonable compensation to be paid by the Servicer.
[Signature Page Follows]
10
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
PEOPLEFIRST FINANCE, LLC,
as Custodian
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Indenture Trustee
By: /s/ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Corporate Trust Officer
FINANCIAL SECURITY ASSURANCE INC.,
as Insurer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ VEHICLE
RECEIVABLES OWNER TRUST 2000-2,
by WILMINGTON TRUST COMPANY, not
in its individual capacity, but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice-President
PF FUNDING II, LLC,
as Transferor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice-President
12
EXHIBIT 1
CERTIFICATION
[Indenture Trustee]
Re: Custodial Agreement (the "Custodial Agreement") dated as of
December 1, 2000, among PF Funding II, LLC, as Transferor,
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Vehicle Receivables Owner Trust 2000-2 and
▇▇▇▇▇ Fargo Bank Minnesota, National Association ("Indenture
Trustee") and PeopleFirst Finance, LLC, as ("Custodian")
Ladies and Gentlemen:
In accordance with the provisions of Section 3 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that as
to each Receivable listed on the Schedule of Receivables (other than any
Receivable paid in full or any Receivable listed on the exception report
attached hereto) it has reviewed the Receivable File and has determined that (i)
all documents required to be delivered to it pursuant to Section 3 of the
Custodial Agreement are in its possession; (ii) such documents have been
reviewed by it and have not been mutilated, damaged, torn or otherwise
physically altered and relate to such Receivable identified on the Schedule of
Receivables; (iii) based on its examination and only as to the foregoing
documents, the information set forth in items (i) (ii) (v) and (vi) of the
definition of Schedule of Receivables respecting such Receivable accurately
reflects the information on the Schedule of Receivables; and (iv) based on its
examination, the Contract is an executed original counterpart.
Capitalized words used herein shall have the respective meanings
assigned to them in the above-captioned Custodial Agreement.
PeopleFirst Finance, LLC, as Custodian
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
13
EXCEPTION REPORT
14
EXHIBIT 2
REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS
[Custodian]
Re: Custodial Agreement (the "Custodial Agreement") dated
as of December 1, 2000, among PF Funding II, LLC, as
Transferor, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Vehicle Receivables Owner
Trust 2000-2 and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association (the "Indenture Trustee") and PeopleFirst
Finance, LLC (the "Custodian")
In connection with the administration of the Receivables held by you as
the Custodian, we request the release of the (Custodian's Receivable
File/specify documents) for the Receivable described below, for the reason
indicated.
Obligor's Name, Address & Zip Code:
Receivable Number:
Reason for Requesting Documents (check one)
[ ] 1. Receivable Paid in Full
[ ] 2. Receivable Redelivered Pursuant to Section 8 of the Custodial
Agreement
[ ] 3. Receivable Liquidated by ______________
[ ] 4. Receivable in Foreclosure
[ ] 5. Other (explain)
If item 1, 2 or 3 above is checked, and if all or part of the
Custodian's Receivable 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 Receivable.
15
If Item 4 or 6 above is checked, upon our return of all of the above
document to you as the Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form.
[________________], as Servicer
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
ACKNOWLEDGED:
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
DOCUMENTS RETURNED TO THE CUSTODIAN
PEOPLEFIRST FINANCE, LLC, as Custodian
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
16
EXHIBIT 3
AUTHORIZED REPRESENTATIVES
a) of PeopleFirst Finance, LLC
Name Specimen Signature
1.
2.
3.
4.
5.
b) of Wilmington Trust Company
Name Specimen Signature
1.
2.
3.
4.
c) of ▇▇▇▇▇ Fargo Bank Minnesota, National Association
Name Specimen Signature
1.
2.
3.
4.
17
d) of Financial Security Assurance Inc.
Name Specimen Signature
1.
2.
3.
4.
18
EXHIBIT 4
EXHIBIT 5
SCHEDULE OF RECEIVABLES
19
EXHIBIT 6
ACKNOWLEDGMENT
▇▇▇▇▇ Fargo Bank Minnesota, National Association, acting as Indenture
Trustee pursuant to that certain Custodial Agreement, dated as of December 1,
2000, among PF Funding II, LLC, as Transferor, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Vehicle
Receivables Owner Trust 2000-2, as Issuer, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association and Financial Security Assurance Inc., as Insurer, hereby
acknowledges that it has conducted a limited review of at least [#00] of the
Receivable Files transferred to the Issuer pursuant to the Sale and Servicing
Agreement, dated as of December 1, 2000 (the "Sale and Servicing Agreement"),
among ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Vehicle Receivables Owner Trust 2000-2, as Issuer, PF
Funding II, LLC, as Transferor, PeopleFirst Finance, LLC as Seller and Servicer,
ML Asset Backed Corporation, as Depositor, and ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as Indenture Trustee and Backup Servicer, and hereby
confirms that each Receivable File so reviewed, with the exceptions noted on
Exhibit A hereto, included (a) the executed cancelled check for the related
Contract, (b) a copy of the Note and Security Agreement for such Contract, (c)
the original certificate of title or, if not yet received, evidence that an
application therefor has been submitted with the appropriate authority, a
guaranty of title from a dealer or such other document (electronic or otherwise,
as used in the applicable jurisdiction) that the Servicer shall have on file in
accordance with the Servicer's customary procedures, evidencing the security
interest of the originator, (d) the originals of all assumption, consolidation,
extension, modification or waiver agreements, if any, relating to such
Receivable, (e) any other documents that the Servicer shall keep on file, in
accordance with its customary procedures, or reasonably required by the Issuer,
from time to time to be kept on file, relating to a Receivable, the related
Obligor or the related Financed Vehicle, and (f) any additional original loan
documents evidencing any assumption, consolidation, extension, modification or
waiver of a Receivable approved by the Servicer. ▇▇▇▇▇ Fargo Bank Minnesota,
National Association has not otherwise reviewed the Receivables or the related
Receivable Files for compliance with the terms of the Sale and Servicing
Agreement.
IN WITNESS WHEREOF, ▇▇▇▇▇ Fargo Bank Minnesota, has caused this
acknowledgement to be executed by its duly authorized officer as of this [__]th
day of [_________], 2000.
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Indenture Trustee
By:
---------------------------
Name:
Title:
20
EXHIBIT A
EXCEPTIONS
