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CUSTODY AGREEMENT
by and among
CS FIRST BOSTON MORTGAGE CAPITAL CORP.,
Lender
and
AUTOINFO FINANCE OF VIRGINIA, INC.,
Borrower and Servicer
and
CAR LOAN CO., INC.,
Borrower and Servicer
and
CRESTAR BANK,
Custodian
Dated as of December 9, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; APPOINTMENT........................ 1
Section 1.1. General................................................. 1
Section 1.2. Certain Defined Terms................................... 1
Section 1.3. Incorporation of Certain Definitions.................... 3
Section 1.4. Reference to Time....................................... 3
Section 1.5. Appointment of the Custodian............................ 3
ARTICLE II
RECEIVABLE INFORMATION LIST...................... 4
Section 2.1. Receivable Information List; Computer File.............. 4
Section 2.2. Documents Maintained by Servicer........................ 4
ARTICLE III
CUSTODIAL ARRANGEMENT.......................... 5
Section 3.1. Deposit of Collateral................................... 5
Section 3.2. Transfer of Receivables; Delivery of Documents.......... 5
Section 3.3. Borrowing Request and Review of Receivable Files........ 6
Section 3.4. Trust Receipt and Certification......................... 7
Section 3.5. Release of Receivable Files............................. 8
Section 3.6. Return.................................................. 9
Section 3.7. Custodial Register...................................... 9
Section 3.8. Power of Attorney....................................... 9
Section 3.9. No Service Charge for Sale or Transfer of Receivables... 9
Section 3.10. The Lender May Reject Receivables....................... 9
Section 3.11. Affidavit of Lost Receivable File....................... 10
ARTICLE IV
DISTRIBUTION DATE PAYMENTS; SETTLEMENT ACCOUNTS...... 11
Section 4.1. Distribution Date Payments.............................. 11
Section 4.2. Settlement Account...................................... 11
Section 4.3. Distributions........................................... 11
Section 4.4. Payments of Shortfalls.................................. 12
Section 4.5. Investments............................................. 12
Section 4.6. Simultaneous Transfers.................................. 12
Section 4.7. Transfer of Receivables ................................ 12
ARTICLE V
CUSTODIAN................................ 14
Section 5.1 Representations, Warranties and Covenants of Custodian.. 14
Section 5.2 Custodian of Documents.................................. 15
Section 5.3 Charges and Expenses.................................... 15
Section 5.4 No Adverse Interests.................................... 16
Section 5.5 Inspections............................................. 16
Section 5.6 Insurance............................................... 16
Section 5.7 Limitation of Liability................................. 16
Section 5.8 Indemnification......................................... 16
Section 5.9 Removal of Custodian.................................... 17
Section 5.10 Termination of Custodian................................ 17
Section 5.11 Reliance of Custodian................................... 17
Section 5.12 Transmission of Receivable Files........................ 17
Section 5.13 Authorized Representatives.............................. 18
Section 5.14 Merger or Consolidation of or Assumption of the
Obligations of the Custodian........................ 18
ARTICLE VI
MISCELLANEOUS PROVISIONS...................... 19
Section 6.1 Amendment............................................... 19
Section 6.2 Governing Law and Jurisdiction; Waiver of Jury Trial.... 19
Section 6.3 Notices................................................. 19
Section 6.4 Severability of Provisions.............................. 20
Section 6.5 No Partnership.......................................... 20
Section 6.6 Counterparts............................................ 20
Section 6.7 Assignment.............................................. 20
Section 6.8 Headings................................................ 20
EXHIBIT A Form of Trust Receipt and Certification................... A-1
EXHIBIT B Request for Release of Documents.......................... B-1
EXHIBIT C Authorized Officers of the Lender......................... C-1
EXHIBIT D Authorized Officers of AutoInfo Finance of Virginia, Inc.. D-1
EXHIBIT E Authorized Officers of Car Loan Co., Inc.................. E-1
EXHIBIT F Authorized Officers of Custodian.......................... G-1
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CUSTODY AGREEMENT
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This Custody Agreement ("Agreement"), dated as of December 9, 1996, is
by and among AutoInfo Finance of Virginia, Inc., a Virginia corporation
("AutoInfo Finance"), Car Loan Co., Inc., a Connecticut corporation ("Car Loan
Co.") (AutoInfo Finance and Car Loan Co. are referred to herein collectively as
the "Borrowers" and each a "Borrower"), CS First Boston Mortgage Capital Corp.,
a New York corporation ("Lender"), and Crestar Bank, a Virginia banking
corporation ("Custodian").
PRELIMINARY STATEMENT
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A. Pursuant to the Loan, Security and Servicing Agreement dated as of
December 9, 1996 (the "Loan Agreement") among the Lender and the Borrowers, the
Lender may from time to time make Advances to the Borrowers.
B. In order to secure repayment of the Advances, each Borrower has
transferred, assigned, pledged and granted, and will from time to time transfer,
assign, pledge and grant, to the Lender and its successors and assigns a
security interest in and lien on all of such Borrower's right, title and
interest in and to the Collateral.
C. The Lender and the Borrowers desire to provide for the custody and
management of the Receivable Files relating to the Receivables.
D. The Lender and the Borrowers have requested that the Custodian act
as custodian to hold all Receivable Files relating to the Receivables and the
proceeds thereof as bailee of, and agent for the benefit of the Lender.
The Custodian is willing and able to perform the duties and
obligations of a custodian and bailee as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Lender, the
Borrowers and the Custodian agree as follows:
ARTICLE I
DEFINITIONS; APPOINTMENT
Section 1.1. General. For the purpose of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article include the plural as well as the singular, the words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision, and Section references refer to Sections of this Agreement.
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Section 1.2. Certain Defined Terms. Whenever used in this Agreement,
unless the context otherwise requires, the following words shall have the
meanings set forth below:
"Agreement": This Custody Agreement, including all exhibits hereto,
and all amendments hereof and supplements hereto.
"Assignment": With respect to a Receivable, collectively the original
instrument of assignment of such Receivable and all other documents securing
such Receivable made by the Person originating such Receivable to the applicable
Borrower, which is in a form sufficient under the laws of the jurisdiction in
which the related Financed Vehicle is located to permit the assignee to exercise
all rights granted by the Obligor under such Receivable and such other documents
and all rights available under applicable law to the obligee under such
Receivable and which, in each case, may, to the extent permitted by the laws of
the state in which the related financed vehicle is located, be a blanket
instrument of assignment covering other Receivables as well.
"Authorized Representative": As defined in Section 5.13 hereof.
"Available Funds": With respect to any Distribution Date, all
collections and other amounts received in respect of the Receivables and
deposited to the Settlement Accounts during the related Collection Period.
"Borrowing Request": As defined in the Loan Agreement and in the form
attached thereto.
"Collateral Value Deficiency Notice": As defined in the Loan
Agreement.
"Collection Period": As defined in the Loan Agreement.
"Confirmation": As defined in the Loan Agreement.
"Delivery Date": The date on which the Receivables and related
Receivable Files are delivered to the Custodian by the applicable Borrower.
"Lender's Account": The account designated in writing by the Lender to
Custodian, as Lender may so designate from time to time.
"Monthly Servicing Fee": As defined in the Loan Agreement.
"Receivable": As defined in the Loan Agreement.
"Receivable Files": As defined in Section 3.2 hereof.
"Receivable Information List": As defined in the Loan Agreement.
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"Servicer": AutoInfo Finance of Virginia, Inc. or Car Loan Co., Inc.,
as applicable, or any successor thereto.
"Settlement Account": An account established pursuant to Section 4.2
hereof and the Loan Agreement.
Section 1.3. Incorporation of Certain Definitions. All capitalized
terms used herein and not otherwise defined shall have the meanings assigned in
the Loan Agreement, unless the context clearly indicates otherwise.
Section 1.4. Reference to Time. All references to time herein shall be
deemed to refer to New York City time unless otherwise provided.
Section 1.5. Appointment of the Custodian. The Lender and the
Borrowers hereby appoint the Custodian, and the Custodian hereby accepts its
appointment, to act as the bailee of and agent for the Lender and its successors
and assigns for the purpose of taking custody of the documents contained in the
Receivable Files and the proceeds thereof and to act on behalf of the Lender
under this Agreement and, in the absence of other written instructions from the
Lender, to exercise such powers hereunder as are specifically delegated to or
required of the Custodian by the terms hereof. With respect to each Receivable,
the Custodian's appointment as the bailee and agent shall terminate upon such
time as such Receivable is not subject of the Loan Agreement or upon notice from
the Lender.
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ARTICLE II
RECEIVABLE INFORMATION LIST
Section 2.1. Receivable Information List; Computer File.
(a) Custodian shall maintain, as an attachment to its executed copy of
this Agreement or otherwise in its records or possession, the most recent
version of the Receivable Information List, as such list may be amended from
time to time. Custodian shall receive a printed copy of the amended Receivable
Information List with each revised copy of the Computer File. If a Computer File
received by Custodian is not accompanied by such amended Receivable Information
List, Custodian shall immediately produce such a printed list from the related
Computer File. The Receivable Information List in the custody of Custodian shall
be the definitive Receivable Information List for all purposes under this
Agreement.
(b) On or before (i) each Delivery Date and (ii) each Distribution
Date the applicable Borrower shall provide to the Custodian and to the Lender a
Computer File for each Receivable, as of a date not earlier than the Business
Day prior to such Delivery Date or Distribution Date. With respect to any
Collateral Value Deficiency Notice, the applicable Borrower shall, along with
the delivery of any additional Receivables as required pursuant to the terms of
the Loan Agreement, provide to the Custodian and the Lender a Computer File for
such Receivables. Each Computer File shall clearly indicate Defaulted
Receivables in a manner acceptable to the Custodian and the Lender and, when
delivered, shall be accompanied by a printed copy of the amended Receivable
Information List.
Section 2.2. Documents Maintained by Servicer. Except as delivered to
the Custodian hereunder, all other documents and files relating to the
Receivables shall be retained and held by the applicable Servicer pursuant to
the terms of the Loan Agreement.
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ARTICLE III
CUSTODIAL ARRANGEMENT
Section 3.1. Deposit of Collateral. Each Borrower shall deposit with
the Custodian, and the Custodian agrees to hold in pledge as bailee of and as
agent for the Lender and its successors and assigns, such Collateral that may be
so deposited hereunder from time to time. The Custodian shall maintain such
Collateral so deposited in separate records and files.
Section 3.2. Transfer of Receivables; Delivery of Documents. A
Borrower shall, prior to the delivery of or with the Borrowing Request relating
to each Advance, deliver, or cause to be delivered, to the Custodian the
following documents:
(i) the Receivable Information List, as amended;
(ii) an executed Assignment, if applicable;
(iii) the original certificate of title or title
guaranty issued by the related Dealer or a copy of
an application for title if no certificate of
title has yet been issued; provided, however,
that, with respect to any Advances to AutoInfo
Finance within 90 days after the date of this
Agreement, such certificate of title, title
guaranty or application for title need not be
delivered to the Custodian prior to or with the
delivery of the Borrowing Request; provided,
further, that for any Receivable subject to such
Advance and for which any such certificate of
title, title guaranty or application for title is
not so delivered prior to or with such Borrowing
Request, AutoInfo Finance shall cause the original
certificate of title to be delivered to the
Custodian prior to the earlier of (x) 90 days
after the applicable Advance Date and (y) 180 days
after the date of origination of the related
Receivable;
(iv) the fully executed original of the Receivable
signed by the applicable Borrower in the following
form: "Assigned to [the Lender or, if requested by
the Lender, in blank], without recourse" together
with all intervening endorsements showing a
complete chain of title from originator to the
Borrower;
(v) a copy of the credit application executed by the
Obligor;
(vi) the originals of any assumption, modification,
written assurance, substitution agreement,
extension or guaranty agreement and any assignment
thereof;
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(vii) the original of any security agreement or
equivalent document executed in connection with
the Receivable and any assignment thereof;
(viii) if any Receivable was originated in a state in
which the filing of a financing statement under
the UCC is required to perfect an interest in
motor vehicles, copies of the filed statements (as
well as a consent to file additional UCC-1s or
UCC-3s as required); provided that the Custodian
has no obligation to determine whether such
financing statements are required to perfect an
interest in motor vehicles;
(ix) such other documents as may be in existence
evidencing the security interest of the Lender in
the Receivable; provided, however, that the
Custodian has no obligation to determine the
existence of or necessity for such other
documents; and
(x) such other documents as the Lender may require
after notice to the Borrowers and the Custodian
which the Custodian has consented to review.
All documents held by Custodian with respect to a Receivable,
including those delivered to the Custodian pursuant to Section 3.2, are referred
to herein as the "Receivable File."
Each Borrower represents and warrants to the Lender and the Custodian
that, with respect to such Borrower's Receivables, (i) each of such documents
which is required to be signed by the Obligor has been signed by the Obligor in
the appropriate spaces; and (ii) all blanks on any form have been properly
filled in and each form has otherwise been correctly prepared.
Each Borrower shall, upon execution of this Agreement, deliver to the
Custodian the following:
With respect to Receivables that are chattel paper, evidence of filing
with the appropriate office in the following jurisdictions of the following
UCC-1 financing statements, each indicating the Receivables as collateral:
(a) UCC-1 financing statement executed by the applicable Borrower as
debtor, naming the Lender as secured party, and filed in the State of
Virginia or the State of Connecticut, as applicable; and (b) such other
filings under the UCC as may be required by the Lender;
Section 3.3. Borrowing Request and Review of Receivable Files.
(a) Upon receipt of a Borrowing Request from a Borrower, the Custodian
shall review the Receivable Files which such Borrower has deposited with the
Custodian in connection with such Borrowing Request to determine whether the
Custodian has received a Receivable File with respect to each Receivable listed
on the Schedule of Receivables attached to such Borrowing
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Request. Custodian shall immediately advise the Lender and such Borrower by
telephone or by facsimile transmission if it determines that such Receivables
and other documents in the related Receivable File are not so deposited.
(b) The Custodian shall review the Receivable Files: (i) with respect
to the Receivables subject to Advances referred to in the first and second
provisos in Section 3.2(iii) hereof and for which no original certificate of
title, title guaranty or copy of an application for title is delivered prior to
or with a Borrowing Request, within 90 days after the applicable Advance Date;
and (ii) with respect to any other Receivables not subject to clause (i) in this
Section 3.3(b), within 120 days after the applicable Advance Date, in each case
to verify that original certificates of title have been delivered to the
Custodian. The Custodian shall immediately notify the applicable Borrower and
the Lender by telephone or facsimile transmission if it determines that any such
original certificate of title has not been delivered to the Custodian.
Section 3.4. Trust Receipt and Certification.
(a)(i) Within two (2) Business Days following receipt of the
Receivable Files, the Computer File and the Borrowing Request, the Custodian
shall, with respect to the Receivables referenced in such Borrowing Request,
execute and deliver to the Lender (with a copy to the related Borrower which
shall be clearly marked as a copy and non-transferable) one or more
certifications (each, a "Trust Receipt and Certification") in the form set forth
in Exhibit A hereto.
(ii) In the event of delivery by the Lender to the Borrowers
and the Custodian of a Collateral Value Deficiency Notice pursuant to the Loan
Agreement the Custodian shall, upon receipt of such Notice and the Receivables
and the related Receivable Files delivered to Custodian by such Borrower(s)
pursuant to such Notice, execute and deliver to the Lender (with a copy to the
applicable Borrower which shall be clearly marked as a copy and
non-transferrable) one or more Trust Receipt(s) and Certification(s) in the form
attached hereto as Exhibit A with respect to such Receivable or Receivables.
(b) The Custodian shall, in each Trust Receipt and Certification,
certify and confirm as to each Receivable listed on the Schedule of Receivables
attached to the Borrowing Request (or in the case of a Collateral Value
Deficiency Notice the Receivables delivered to it) that, except as noted on the
schedule of exception report attached to the related Trust Receipt and
Certification:
(i) all documents required to be delivered to it pursuant to
Section 3.2 hereof are in the Custodian's possession;
(ii) such documents have been reviewed by the Custodian and
appear regular on their face and relate to such applicable Receivables and
neither the Receivables nor the Assignments contains any notations on their face
which appear to evidence any claims, liens, security interests, encumbrances or
other restrictions or transfers;
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(iii) each Receivable bears an original signature or
signatures purporting to be the signature or signatures of the person or persons
named as the maker or Obligor under the Receivable;
(iv) if the Receivable does not name "[the related
Borrower]" as the holder or payee, the Receivable bears the original
endorsements that complete the chain of ownership from the original holder or
payee to "[the related Borrower]";
(v) the original of the Assignment of the Receivable
required under Section 3.2 and any intervening assignment of such Receivable
bear the original signature purporting to be the signature of the named obligee
or beneficiary (and any other necessary party including subsequent assignors)
and that such Assignment and any such intervening assignment complete the chain
of title from the originator to the "[the related Borrower]";
(vi) each Receivable has been endorsed as noted in Section
3.2 hereof; and
(vii) based on its review of the Receivable File with
respect to each such Receivable, the information set forth on the Schedule of
Receivables attached to the Borrowing Request or in the Computer File, as
applicable, accurately reflects the information contained in each Receivable
Files.
(c) If, on each Distribution Date, a Receivable is released from the
lien of the Loan Agreement or is rejected by the Lender, the Lender shall cause
the applicable Trust Receipt and Certification to be delivered via overnight
courier to Custodian for cancellation. In the event that any Receivables covered
by such surrendered Trust Receipt(s) and Certification(s) are still subject of
an Advance and the lien of the Loan Agreement, the Custodian shall issue and
deliver to the Lender via overnight courier a replacement Trust Receipt and
Certification covering such Receivables which are still subject to an Advance
and the lien of the Loan Agreement.
Section 3.5. Release of Receivable Files. From time to time and as
appropriate for the repossession of or foreclosure on the collateral securing
any of the Receivables, pay off, full prepayment and repurchase, or in the event
that the Receivable has been rejected, is a Liquidated Receivable or is a
Defaulted Receivable, Custodian is hereby authorized, upon written request of
the applicable Borrower in the form annexed hereto as Exhibit B, to release to
such Borrower or such Borrower's designee the related Receivable Files or the
documents set forth in such request. All documents so released to such Borrower
or such Borrower's designee shall be held by it in trust for the benefit of the
Lender. Such Borrower shall return or cause to be returned to the Custodian the
Receivable Files, or such other documents which have been released to such
Borrower or such Borrower's designee, when such Borrower's need therefor in
connection with such foreclosure or repossession no longer exits, unless the
Receivable shall be liquidated, in which case, upon receipt of a certification
to this effect from such Borrower to Custodian in the form annexed hereto as
Exhibit B, the related Receivable Files shall be released by Custodian to such
Borrower and the Custodian shall thereupon reflect any such liquidation on the
Receivable Information List.
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The foregoing provision respecting release of the Receivable Files by
Custodian upon request by a Borrower shall be operative only to the extent that
at any time Custodian shall not have released Receivable Files or any part
thereof or documents (including those requested) pertaining to no more than 100
of the total number of Receivables being maintained by Custodian hereunder at
the time of such request. Any additional Receivable Files or documents requested
to be released by a Borrower may be released only upon written authorization of
the Lender. The limitation of this paragraph shall not apply to release of the
Receivable Files to a Borrower under Section 3.6 or Section 3.10 below.
Section 3.6. Return. Upon the return of any Receivable pursuant to
this Agreement, the Loan Agreement or the payment in full of any Receivable,
which shall be evidenced by Custodian's receipt of the applicable Borrower's
request for release in the form annexed hereto as Exhibit B, Custodian shall
promptly release the related Receivable Files to such Borrower or such
Borrower's designee.
Section 3.7. Custodial Register. Custodian shall cause such books and
records at its corporate trust office or other registry maintained with respect
to the Receivables to reflect that such records and books or other registry and
the Receivables which are the subject of such records and books or other
registry are owned by the applicable Borrower and pledged to the Lender.
Section 3.8. Power of Attorney. Each Borrower and the Lender hereby
grant to the Custodian a power of attorney, with full power of substitution, to
take in the name of such Borrower and the Lender all steps which are necessary
or appropriate to endorse, negotiate, deposit or otherwise realize on any
instrument or writing of any kind held or transmitted by such Borrower or the
Lender or transmitted or received by Custodian in connection with any
Receivable. The power of attorney that each Borrower and the Lender have granted
to the Custodian pursuant to this Section 3.8 may be revoked by the Lender at
any time.
Section 3.9. No Service Charge for Sale or Transfer of Receivables. No
service charge shall be made for any sale or transfer of Receivables, but the
Custodian may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any sale or transfer
of Receivables. Notwithstanding the foregoing, the Custodian may charge a
reasonable fee in connection with the release of the Receivable Files or any
document contained therein pursuant to Section 3.5, which fee shall be paid by
the Borrowers.
Section 3.10. The Lender May Reject Receivables.
(a) The Lender may refuse any Receivable offered by a Borrower under
the Loan Agreement or may, by notice to Custodian, require an immediate transfer
of any Receivable back to such Borrower, in each case under the circumstances
provided in the Loan Agreement. The Borrowers shall have no right to object to
such rejection or transfer.
(b) If a Receivable is not accepted by the Lender on an Advance Date
because of a defect in the related Receivable File, or if the Lender gives
written notice to the Custodian
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that it will not be accepting a specific Receivable for any other reason, the
Custodian will return the related Receivable File to the related Borrower (or
such other person as such Borrower shall indicate in writing), at such
Borrower's expense, within two (2) Business Days of such Advance Date unless
otherwise instructed in writing by the Lender or, after such Advance Date, by
such Borrower.
Section 3.11. Affidavit of Lost Receivable File. In the event the
Custodian loses or misplaces any Receivable File or any portion thereof, or if
any instruments, documents, or certificates therein are destroyed, then, in
addition to any other liability the Custodian may have in respect thereof
pursuant to the terms of this Custody Agreement or otherwise, the Custodian
agrees to execute and deliver to the Lender, upon the Lender's written request,
an affidavit stating that such instrument, document, or certificate has been
lost or destroyed, as applicable, and, if necessary, such other affidavits or
certificates as may be reasonably necessary to obtain replacement certificates
of title or other instruments.
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ARTICLE IV
DISTRIBUTION DATE PAYMENTS; SETTLEMENT ACCOUNTS
Section 4.1. Distribution Date Payments. One (1) Business Day prior to
each Distribution Date, the Lender shall inform Custodian via facsimile of the
amounts payable by the Borrowers to Lender on such Distribution Date pursuant to
the Loan Agreement and Custodian shall, on such Distribution Date, transfer such
amounts from the Settlement Accounts to the Lender's Account in accordance with
Section 4.3.
Section 4.2. Settlement Account.
(a) Each Borrower shall establish and maintain a separate Settlement
Account with Crestar Bank, which shall be an Eligible Account; provided,
however, if such account shall cease to be an Eligible Account, then within five
(5) Business Days thereafter, the Custodian, with the consent of the Lender,
shall cause such account to be moved to an institution so that such account
meets the definition of an Eligible Account. One Settlement Account shall be
entitled "Crestar Bank as Custodian for CS First Boston Mortgage Capital Corp.
(regarding AutoInfo Finance of Virginia, Inc.)" and the other Settlement Account
shall be entitled "Crestar Bank, as Custodian for CS First Boston Mortgage
Capital Corp. (regarding Car Loan Co., Inc.)". All amounts paid into each
Settlement Account under this Agreement and pursuant to the Loan Agreement shall
be held in trust for the Lender until payment of any such amounts is authorized
hereunder.
(b) On each Business Day, pursuant to the applicable Lock-Box
Agreement, the applicable Lock-Box Bank shall transfer any payments from
Obligors and other payments in respect of the Collateral received in such
Lock-Box to the applicable Settlement Account. In addition, each Servicer shall,
in accordance with the terms of the Loan Agreement, remit, and shall cause each
Borrower to remit, directly into the applicable Settlement Account all payments
by or on behalf of the Obligors received by such Servicer or such Borrower, as
applicable, with respect to the Receivables and other Collateral, and all
Liquidation Proceeds and other recoveries as soon as practicable after receipt
thereof (but in any event no later than one (1) Business Day following receipt
thereof.)
Section 4.3. Distributions.
(a) On each Distribution Date the Custodian, in accordance with the
written instructions of the Lender delivered to it on or prior to such
Distribution Date, shall make the following payments in the following order from
amounts on deposit in the Settlement Accounts which have been allocated to the
payment thereof:
(i) an amount equal to the Monthly Servicing Fee due on such
Distribution Date plus any unpaid Servicing Fee due on a prior
Distribution Date shall be distributed to the applicable Servicer;
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(ii) the amount specified by the Lender pursuant to Section
4.1 shall be distributed to the Lender's Account;
(iii) if a Borrowing Base Deficiency exists as of the
related Determination Date, an amount equal to such Borrowing Base
Deficiency shall be distributed to the Lender's Account;
(iv) any amount deposited in each Settlement Account that
was not required to be deposited by the applicable Borrower or the
applicable Servicer therein shall be returned to such Borrower; and
(v) all amounts remaining in the Settlement Account after
payments pursuant to clauses (i) through (v) in this Section 4.3 shall
be distributed to the applicable Borrower.
(b) The Custodian shall make all distributions by check or by wire
transfer of immediately available funds, as directed by the party to whom such
distribution is payable.
Section 4.4. Payments of Shortfalls. If the Custodian determines that
the amounts in the Settlement Accounts are insufficient to pay amounts payable
pursuant to Section 4.3, the Custodian shall notify Lender and the Borrowers of
such circumstance by telephone or telecopy, and the Borrowers shall immediately
deposit to such Settlement Accounts in immediately available funds the amount of
such deficiency. If, notwithstanding the application of funds in such Settlement
Accounts, there are still insufficient funds available to make any such payment
or distribution required to be made on such day, then, in addition to any other
rights Lender may have, interest shall, to the extent permitted by law, accrue
on the portion of such due and unpaid amount owing to Lender, commencing on the
due date until paid in full, at the Late Payment Rate.
Section 4.5. Investments. The Custodian shall, in the name of
Custodian, as custodian, upon written direction from the applicable Borrower,
invest the amounts in the applicable Settlement Account in Eligible Investments.
Such investment shall mature not later than one (1) Business Day prior to the
next succeeding Distribution Date. No investment may be sold prior to its
maturity, unless otherwise instructed by the applicable Borrower. All net income
and gain from such investments shall be deposited in the related Settlement
Account and any losses on reinvestment of funds shall be reimbursed by the
related Borrower and deposited into such Settlement Account.
Section 4.6. Simultaneous Transfers. The Advances to a Borrower and
the transfer of the related Receivables pursuant to any provision of this
Agreement and the Loan Agreement shall be deemed to occur simultaneously.
Section 4.7. Transfer of Receivables .
(a) Upon Custodian receiving written certification from the Lender of
a Potential Event of Default, Custodian shall (x) follow the instructions of the
Lender including
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instructions regarding the release of the related Receivables from this
Agreement and the transfer of such Receivables and shall do such other acts and
execute such other documents as may be deemed reasonably necessary by such
non-defaulting party to comply with such instructions and (y) follow the
instructions of such nondefaulting party with respect to payment of related
amounts from the Settlement Accounts.
(b) Upon (i) receipt by Custodian of a written certification of the
Lender of a breach of a representation or warranty by Custodian, or the failure
of Custodian to perform a covenant, under this Agreement, and any applicable
cure period has elapsed, or (ii) the termination of the Custodian pursuant to
Section 5.9 hereof, Custodian shall (x) follow the instructions of the Lender
regarding the release from this Agreement and the transfer of such Receivables
and shall do such other acts and execute such other documents as may be deemed
reasonably necessary to comply with such instructions and (y) follow the
instructions of the Lender with respect to payment of related amounts from the
Settlement Accounts.
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ARTICLE V
CUSTODIAN
Section 5.1 Representations, Warranties and Covenants of Custodian.
With respect to each Trust Receipt and Certification, Custodian hereby
represents and warrants to, and covenants with the Lender that as of the date
such Trust Receipt and Certification is provided, which representations and
warranties shall survive delivery of such Trust Receipt and Certification:
(a) Custodian is duly organized, validly existing and in good standing
under the laws of the United States;
(b) Custodian has the full power and authority to hold each Receivable
(whether acting alone or through an agent) and to execute, deliver and perform,
and to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement and this Agreement
constitutes a legal, valid and binding obligation of Custodian, enforceable
against it in accordance with its terms, except as enforcement of such terms may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and by the availability of equitable remedies;
(c) Neither the execution and delivery of this Agreement, the filing
of a financing statement indicating that the Lender is the secured party with
respect to certain Receivables, the delivery of Receivables, the issuance of the
Trust Receipt and Certification, the consummation of the transactions
contemplated hereby or thereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement will conflict with or result in a breach
of any of the terms, conditions or provisions of Custodian's charter or by-laws
or any legal restriction or any agreement or instrument to which Custodian is
now a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which Custodian or its property
is subject;
(d) Custodian does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant contained in this
Agreement;
(e) There is no litigation pending or threatened, which if determined
adversely to Custodian, would adversely affect the execution, delivery or
enforceability of this Agreement, or any of the duties or obligations of
Custodian thereunder, or which would have an adverse effect on the financial
condition of Custodian;
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Custodian of or compliance by Custodian with this Agreement or
the consummation of the transactions contemplated hereby;
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(g) Custodian is a separate and independent entity from any of the
Borrowers, Custodian does not own a controlling interest in any of the Borrowers
either directly or through affiliates, and no director or officer of the
Custodian is also a director or officer of any of the Borrowers;
(h) Upon written request of the Lender, Custodian shall take such
steps as requested by the Lender to protect or maintain any interest in the
Financed Vehicle or other collateral securing the Receivable owned by the Lender
and any insurance applicable thereto.
(i) Custodian is not a party to, bound by or in breach or violation of
any indenture or other agreement or instrument, or subject to or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which adversely
affects, or may in the future adversely affect, the ability of the Custodian to
perform its obligations under this Agreement or the interest of the Lender in
any respect;
(j) There are no actions, suits, proceedings or investigations pending
or threatened against the Custodian, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, and (C)
seeking any determination or ruling that might adversely affect the performance
by the Custodian of its obligations under, or the validity or enforceability of,
this Agreement; and
(k) Custodian shall monitor the financing statements filed with
respect to the Receivables naming the Lender as the secured party and shall
cause each Borrower to file or, if a Borrower shall fail to file in a timely
manner, shall itself file such amendments and continuation statements with
respect thereto necessary in order to maintain the perfected security interest
of the Lender in the Receivables.
Section 5.2 Custodian of Documents. Custodian, either directly or by
acting through an agent, shall hold all documents relating to any Receivable
that comes into its possession for the exclusive use and benefit of the Lender
on and after the related Advance Date and shall make disposition thereof only in
accordance with the instructions furnished to it by the Lender. Custodian shall
segregate and maintain continuous custody of all such documents received by it
in secure facilities in accordance with customary standards for such custody and
shall not release such documents or transfer such documents to any other party,
including any subcustodian, without the express written consent of the Lender,
except as provided in Section 3.5 hereof.
Section 5.3 Charges and Expenses. The Borrowers shall pay all fees and
reasonable expenses of Custodian in connection with the performance of its
duties hereunder in accordance with written agreements entered into from time to
time between Custodian and the Borrowers, including reasonable fees and expenses
of counsel incurred by Custodian in the performance of its duties hereunder;
provided, however, that (i) Custodian shall in no event acquire and hereby
agrees not to assert (x) any lien upon any Receivable deposited under this
Agreement or (y) any claim against the Lender, by reason of the failure of the
Borrowers to pay
15
any of such fees, charges or expenses, and (ii) in the event the Borrowers fail
to pay the fees and expenses of Custodian as set forth in such written
agreements, Custodian shall have no obligation to take actions or incur costs in
connection with this Agreement unless the Lender, the Borrowers or another
Person has made adequate provision for payment of Custodian's fees and expenses.
Section 5.4 No Adverse Interests. Custodian covenants and warrants to
the Lender and the Borrowers that: (i) as of the related date on which Custodian
receives evidence of the perfection of the Lender's interest in the related
Receivables, it holds no adverse interest, by way of security or otherwise, in
any Receivable; and (ii) the execution of this Agreement and the creation of the
custodial relationship hereunder does not create any interest, by way of
security or otherwise of Custodian in or to any Receivable, other than
Custodian's rights as custodian hereunder.
Section 5.5 Inspections. Upon no less than one (1) Business Day's
prior written notice to Custodian, the Lender and the Lender's agents,
accountants, attorneys and auditors will be permitted during normal business
hours to examine Custodian's documents, records and other papers in possession
of or under the control of Custodian relating to the Receivables.
Section 5.6 Insurance. Custodian shall, at its own expense, maintain
at all times during the existence of this Agreement and keep in full force and
effect, (1) fidelity insurance, (2) theft of documents insurance, (3) forgery
insurance subject to deductibles, all in amounts customary and standard in the
industry and with insurance companies reasonably acceptable to the Lender. A
certificate of the respective insurer as to each such policy or a blanket policy
for such coverage shall be furnished to the Lender, upon request, containing the
insurer's statement or endorsement that such insurance shall not terminate prior
to receipt by such party, by registered mail, of ten (10) days advance notice
thereof.
Section 5.7 Limitation of Liability. Custodian assumes no obligation,
and shall be subject to no liability, under this Agreement to the Lender, except
that Custodian agrees to use its best judgment and good faith in the performance
of such obligations and duties as are specifically set forth herein. Custodian
shall not be liable for any action or non-action by it in reliance on advice of
counsel believed by it in good faith to be competent to give such advice.
Custodian may rely and shall be protected in acting upon any written notice,
order, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
Section 5.8 Indemnification. The Borrowers agree to indemnify
Custodian against, and to hold it and its employees, officers and directors
harmless from, any liabilities, and any related out-of-pocket expenses, which it
may incur in connection with this Agreement or the Trust Receipt and
Certification, other than any liabilities and expenses arising out of
Custodian's negligence or bad faith or misconduct. Custodian agrees to indemnify
each of the Lender and the Borrowers and their respective employees, officers
and directors against out-of-pocket expenses which either the Lender or the
Borrowers or their respective employees, officers or directors may incur in
connection with this Agreement and any Trust Receipt and Certification and which
is
16
caused by Custodian's negligence or bad faith or misconduct. Such
indemnifications shall survive the removal or resignation of the Custodian
hereunder and the termination of this Agreement.
Section 5.9 Removal of Custodian. The Lender, with or without cause,
may upon at least thirty (30) days' notice remove and discharge Custodian from
the performance of its duties under this Agreement by written notice from the
Lender to Custodian, with a copy to the Borrowers. Having given notice of such
removal, the Lender promptly shall appoint a successor custodian to act on
behalf of the Lender and the Borrowers, as their respective rights appear
herein, by written instrument, original counterparts of which instrument shall
be delivered to the Lender and the successor Custodian, with a copy to the
Borrowers. In the event of any such removal, Custodian shall promptly transfer
to the successor Custodian, as directed, and at the expense of the Borrowers,
all Custodian's Receivable Files and all funds in the Settlement Accounts and
any other accounts in connection with this Agreement and all related documents.
In the event of any such removal, the Borrowers shall promptly pay the Custodian
its outstanding fees and expenses incurred in connection with this Agreement. In
the event of any such appointment the Borrowers shall be responsible for the
fees and reasonable expenses of the existing and successor Custodian in
accordance with Section 5.3 hereof.
Section 5.10 Termination of Custodian. Custodian may terminate its
obligations under this Agreement upon at least 120 days' prior notice to the
Borrowers and the Lender. In the event of such termination, the Lender shall
appoint a successor Custodian, subject to approval by the Borrowers. The payment
of such successor Custodian's fees and expenses shall be solely the
responsibility of the Borrowers in accordance with Section 5.3 hereof. Upon such
appointment, Custodian shall promptly transfer to the successor Custodian, as
directed, all Receivable Files and all funds in the Settlement Accounts and any
other accounts in connection with this Agreement and all related documents being
administered under this Agreement. If the endorsements on the Receivables have
been completed in the name of Custodian, Custodian shall execute such
endorsements on the Receivables as the Lender shall request. In the event of any
such appointment the Borrowers shall be responsible for the fees and reasonable
expenses of the existing and successor Custodian in accordance with Section 5.3
hereof.
Section 5.11 Reliance of Custodian. The Custodian may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any request, instructions, certificate, opinion or other
document furnished to the Custodian, reasonably believed by the Custodian to be
genuine and to have been signed or presented by the proper party or parties and
conforming to the requirements of this Agreement; but in any case of any
document or other request, instruction, document or certificate which by any
provision hereof is specifically required to be furnished to the Custodian, the
Custodian shall be under a duty to examine the same to determine whether or not
it conforms to the requirements of this Agreement.
Section 5.12 Transmission of Receivable Files. Written instructions as
to the method of shipment and shipper(s) which the Custodian is directed to
utilize in connection with transmission of Receivable Files in the performance
of the Custodian's duties hereunder shall be delivered by the Borrowers to the
Custodian prior to any shipment of any Receivable Files hereunder. In the event
the Custodian does not receive written instructions as provided for in the
17
preceding sentence, the Custodian is hereby authorized and shall be indemnified
as provided herein to utilize a nationally recognized courier service. The
Borrowers shall arrange for the provision of such services at its sole cost and
expense (or, at the Custodian's option, reimburse the Custodian for all costs
and expenses incurred by the Custodian consistent with such instructions) and
will maintain such insurance against loss or damage to Receivable Files as the
Borrowers deem appropriate. Without limiting the generality of the provisions of
Section 5.8 above, it is expressly agreed that in no event shall the Custodian
have any liability for any losses or damages to any person, including, without
limitation, the Borrower, arising out of actions of the Custodian consistent
with instructions of the Borrower.
Section 5.13 Authorized Representatives. Each individual designated as
an authorized representative of the Lender, each of the Borrowers and the
Custodian, respectively (an "Authorized Representative"), is authorized to give
and receive notices, requests and instructions and to deliver certificates and
documents in connection with this Agreement on behalf of the Lender or a
Borrower or the other Borrower or the Custodian, as the case may be, and the
specimen signature for each such Authorized Representative of the Lender, each
such Authorized Representative of one Borrower, each such Authorized
Representative of the other Borrower, and each such Authorized Representative of
the Custodian, initially authorized hereunder, is set forth on Exhibits C, D, E
and F hereof, respectively. From time to time, the Lender, each Borrower and the
Custodian may, by delivering to each other a revised exhibit, change the
information previously given pursuant to this Section 5.13, but each of the
parties hereto shall be entitled to rely conclusively on the then current
exhibit until receipt of a superseding exhibit.
Section 5.14 Merger or Consolidation of or Assumption of the
Obligations of the Custodian. Any Person (i) into which the Custodian may be
merged or consolidated, (ii) which may result from any merger or consolidation
to which the Custodian shall be a party, or (iii) which may succeed to the
properties and assets of the Custodian substantially as a whole, shall execute
an agreement of assumption to perform every obligation of the Custodian
hereunder, and whether or not such assumption agreement is executed, shall be
the successor to the Custodian under this Custody Agreement without further act
on the part of any of the parties to this Custody Agreement; provided, however,
that nothing herein shall be deemed to release the predecessor Custodian from
any obligation.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Amendment. This Agreement may be amended from time to time
by Custodian, the Lender and the Borrower by written agreement signed by such
parties.
Section 6.2 Governing Law and Jurisdiction; Waiver of Jury Trial. This
Agreement shall be construed in accordance with the laws of the State of New
York governing agreements made and to be performed therein, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws. The parties hereto agree to submit to personal jurisdiction in
the State of New York in any action or proceeding arising out of this Agreement.
The parties hereto each hereby waive the right to trial by jury in any
litigation arising hereunder.
Section 6.3 Notices. All demands, notices and communications
hereunder, except as otherwise provided herein, shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, or sent by facsimile transmission to:
(a) in the case of Custodian:
Crestar Bank
βββ β. ββββ ββββββ, ββββ βββββ
ββββββββ, ββββββββ βββββ
Attention: J. βββ ββββ
Telephone: βββ-βββ-ββββ
Telecopy: βββ-βββ-ββββ
(b) in the case of the Lender:
CS First Boston Mortgage Capital Corp.
ββ βββββββ ββββββ, βββ βββββ
βββ ββββ, βββ ββββ βββββ-ββββ
Attention: βββββ ββββββββ
Telephone: (βββ) βββ-ββββ
Telecopy: (βββ) βββ-ββββ
Any and all legal notices are to be sent to:
CS First Boston Mortgage Capital Corp.
ββ βββββββ ββββββ, βββ βββββ
βββ ββββ, βββ ββββ βββββ
Attention: ββββββ ββββββ, Director of Credit
Telephone: (βββ) βββ-ββββ
Telecopy: (βββ) βββ-ββββ
19
(c) in the case of the Borrowers:
AutoInfo Finance of Virginia, Inc.
βββ ββββββββ ββββ
βββββββ, ββββββββ βββββ
Attention: Chief Executive Officer
Telephone: (βββ) βββ-ββββ
Telecopy: (βββ) βββ-ββββ
Car Loan Co., Inc.
βββ ββββββββ ββββββ
βββββββ, βββββββββββ βββββ
Attention: Chief Executive Officer
Telephone: (βββ) βββ-ββββ
Telecopy: (βββ) βββ-ββββ
Section 6.4 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 6.5 No Partnership. Nothing herein contained shall be deemed
or construed to create a co-partnership or joint venture between the parties
hereto and the services of Custodian shall be rendered as an independent
contractor and not as agent for the Lender or the Borrowers.
Section 6.6 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 6.7 Assignment. No party hereto shall sell, pledge, assign or
otherwise transfer this Agreement without the prior written consent of the other
parties hereto.
Section 6.8 Headings. Section headings are for reference purposes only
and shall not be construed as a part of this Agreement.
20
IN WITNESS WHEREOF, the Lender, the Borrowers and the Custodian have
caused their names to be signed hereto by their respective authorized officers
as of the day and year first above written.
CS FIRST BOSTON MORTGAGE CAPITAL CORP.,
as Lender
By__________________________________________
Name:
Title:
AUTOINFO FINANCE OF VIRGINIA, INC.,
as Borrower and Servicer
By__________________________________________
Name: βββββ β. ββββββ
Title: Chief Executive Officer
CAR LOAN CO., INC.,
as Borrower and Servicer
By_________________________________________
Name: βββββ β. ββββββ
Title: Chief Executive Officer
CRESTAR BANK,
as Custodian
By_________________________________________
Name:
Title:
