Exhibit 10.8
EXECUTION COPY
CUSTODIAL AGREEMENT
Dated as of September 13, 2002
among
MERRILL LYNCH BANK USA,
as Lender,
TAXI MEDALLION LOAN TRUST I,
as Borrower,
MEDALLION FUNDING CORP.,
as Servicer,
and
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Custodian
TABLE OF CONTENTS
Page
----
Section 1. Definitions.......................................................1
Section 2. Delivery of Custodian's Medallion Loan Files......................5
Section 3. Medallion Loan Schedule and Exception Report; Trust Receipt.......6
Section 4. Borrower Remains Liable...........................................7
Section 5. Servicer Remains Liable...........................................7
Section 6. Obligations of the Custodian......................................7
Section 7. Release of Custodian's Medallion Loan File........................8
Section 8. Fees and Expenses of the Custodian................................9
Section 9. Examination of Custodian's Medallion Loan Files...................9
Section 10. Insurance of the Custodian........................................9
Section 11. Periodic Statements...............................................9
Section 12. Copies of Medallion Loan Documents...............................10
Section 13. Resignation by and Removal of the Custodian; Successor Custodian.10
Section 14. Indemnity........................................................10
Section 15. Limitation of Liability..........................................11
Section 16. Term of Agreement................................................12
Section 17. Authorized Representatives.......................................12
Section 18. Notices..........................................................12
Section 19. Governing Law....................................................14
Section 20. Assignment.......................................................14
Section 21. Counterparts.....................................................14
Section 22. Headings.........................................................14
-i-
Section 23. Use of Words.....................................................14
Section 24. Transmission of Custodian's Medallion Loan Files.................14
Section 25. No Adverse Interest of Custodian.................................14
Section 26. SUBMISSION TO JURISDICTION; WAIVERS..............................15
Section 27. WAIVER OF JURY TRIAL.............................................15
-ii-
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT is made as of as of September 13, 2002 (as amended
or otherwise modified from time to time, this "Agreement") among MERRILL LYNCH
BANK USA, having an address at 15 W. South Temple, Suite 300, Salt Lake City,
Utah 84101 (the "Lender"), TAXI MEDALLION LOAN TRUST I, having an address at 437
Madison Avenue, New York, New York 10022 (the "Borrower"), WELLS FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, having an address at Sixth and Marquette
Avenue, MAC N9311-161, Minneapolis, Minnesota 55479, as custodian (in such
capacity, the "Custodian"), and MEDALLION FUNDING CORP., having an address at
437 Madison Avenue, New York, New York 10022, as servicer (in such capacity, the
"Servicer").
BACKGROUND
A. The Borrower is the owner of certain Medallion Loans and may acquire
additional Medallion Loans in the future; and
B. The Lender has agreed to provide financing for the Medallion Loans from
time to time pursuant to the Loan and Security Agreement; and
C. The Borrower shall grant to the Lender a first priority security
interest in the Medallion Loans and any other Medallion Collateral and in the
documents listed in Section 2 for the purposes of securing the due and punctual
payment of all amounts due from the Borrower to the Lender according to the
terms and provisions of the Loan and Security Agreement and the Note given
pursuant thereto; and
D. The Borrower intends to deliver to the Custodian certain documents
specified in this Agreement, and the Lender desires the Custodian take
possession of such documents as the custodian for, and bailee of, the Lender in
accordance with the terms and conditions of this Agreement in order to perfect
the Lender's security interest in the Collateral; and
The parties, intending to be legally bound, in consideration of the mutual
agreements herein contained and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, hereby agree as follows:
Section 1. Definitions. In addition to the terms defined elsewhere in this
Agreement or in the Loan and Security Agreement, the following terms shall have
the following meanings when used in this Agreement:
"Affected Medallion Loan" means a Medallion Loan as to which a Specified
Event has occurred or that is to released pursuant to Section 2.08(b) of the
Loan and Security Agreement or Section 8.02(b) or (c) of the Purchase Agreement.
"Affected Medallion Loan File" shall have the meaning set forth in Section
7.
"Agreement" shall have the meaning set forth in the preamble.
"Approval Letter" means a letter from a Taxi Commission confirming and
approving the owner of a Medallion issued by such Taxi Commission.
"Authorized Representative" shall have the meaning set forth in Section 17
hereof.
"Bailment Letters" means each of (i) a letter, in the form of Exhibit 8-A
hereto, pursuant to which the Funding Date Documentation will be delivered to
the Custodian as bailee for Fleet National Bank, as Agent under that certain
Second Amended and Restated Loan Agreement dated as of September 22, 2000 by and
among Medallion Financial Corp., Medallion Business Credit, LLC the Lenders
party thereto and Fleet National Bank, as amended, until such time as the Lien
of the Loan and Security Agreement attaches to the Funding Date Documentation,
whereupon the Funding Date Documentation will be held by the Custodian as bailee
for the Lender pursuant to this Custodial Agreement and (ii) a letter, in the
form of Exhibit 8-B hereto, pursuant to which the Funding Date Documentation
will be delivered to the Custodian as bailee for Medallion Funding Corp.
"Custodial Fee" shall have the meaning set forth in Section 8 hereof.
"Custodial Identification Certificate" means the certificate executed by
the Borrower in connection with the pledge of Eligible Medallion Loans to the
Lender to be held by the Custodian pursuant to this Custodial Agreement, a form
of which is attached as Exhibit 5 hereto.
"Custodian's Delivery Address": means Wells Fargo Bank Minnesota, National
Association, ABS Custody Vault, N9328-011, 751 Kasota Avenue, Minneapolis,
Minnesota 55414.
"Custodian's Medallion Loan Files" means, with respect to a Medallion Loan,
all documents delivered to the Custodian pursuant to Section 2.
"Custodial Delivery Failure" shall have then meaning set forth in Section
14 hereof.
"Deficiency" means a failure of a document to correspond to the information
on the Medallion Loan Schedule or the absence of a Required Document from a
Custodian's Medallion Loan File pursuant to Section 2.
"Exception" means, with respect to any Medallion Loan, any of the
following: (i) the variances from the requirements of Section 2 hereof with
respect to the Custodian's Medallion Loan Files (giving effect to the Borrower's
right to deliver certified copies in lieu of original documents in certain
circumstances), (ii) a Medallion Loan that has been released to the Borrower or
the Servicer pursuant to Section 7(a) hereof in excess of 10 calendar days, and
(iii) any Medallion Loan with respect to which the Custodian receives written
notice or has actual knowledge of a Lien or security interest, other than a
security interest created under the Loan
2
Agreement or Permitted Participation Interests, in favor of a Person other than
the Lender with respect to such Medallion Loan.
"Funding Date Documentation" means, with respect to any Medallion Loan, the
following documents:
(i) The original Medallion Note bearing all intervening endorsements,
endorsed "Pay to the order of _________ without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized Person (in
the event that the Medallion Loan was acquired by the Last Endorsee in a
merger, the signature must be in the following form: "[Last Endorsee],
successor by merger to [name of predecessor]"; in the event that the
Medallion Loan was acquired or originated by the Last Endorsee while doing
business under another name, the signature must be in the following form:
"[Last Endorsee], formerly known as [previous name]");
(ii) The original of the guarantee executed in connection with the
Medallion Note (if any);
(iii) an executed Medallion Security Agreement; (iv) The originals of
all intervening assignments of the Medallion Security Agreement, showing an
unbroken chain of title from the originator thereof to the Last Endorsee or
copies thereof together with an Officer's Certificate of the Borrower
certifying that such represent true and correct copies of the originals;
(v) UCC-1 financing statements with evidence of filing thereof,
referencing the Medallion number financed, with recording information
thereon from the appropriate governmental recording offices if necessary to
perfect the security interest of the Medallion Loan under the Uniform
Commercial Code in the jurisdiction applicable to perfect a security
interest against the Obligor (or an unfiled copy thereof, together with an
Officer's Certificate of the Borrower certifying that such represents a
true and correct copy of the original and that such original has been
submitted for filing in the appropriate UCC filing office of the
jurisdiction applicable to perfect a security interest against the
Obligor), accompanied by UCC amendment financing statements for recordation
of the change in the secured party thereunder;
(vi) All UCC-3 financing statements with evidence of filing thereof,
amending the UCC-1 financing statements described in paragraph (vi) above,
referencing the Medallion number financed, with recording information
thereon from the appropriate governmental recording offices (or an unfiled
copy thereof, together with an Officer's Certificate of the Borrower
certifying that such represents a true and correct copy of the original and
that such original has been submitted for filing in the appropriate UCC
filing office of the jurisdiction applicable to perfect a security interest
against the Obligor), if applicable;
(vii) an executed Affidavit of Judgment by Confession, if available;
3
(viii) an Approval Letter from the respective Taxi Commission
referencing the specific Medallion Loan, if available; and
(ix) an original power of attorney, if applicable.
"Loan and Security Agreement" means, with respect to any Medallion Loans,
the Loan and Security Agreement (as the same may be amended or supplemented from
time to time) between the Lender and the Borrower pursuant to which the Lender
agrees to provide funding to the Borrower to finance the purchase of Medallion
Loans. The Lender agrees to furnish to the Custodian a copy of any agreement
which is intended to serve as the "Loan and Security Agreement" for purposes of
this Agreement, including any supplements or amendments thereto.
"Medallion Loan Schedule" means the schedule of Eligible Medallion Loans to
be delivered to the Custodian in connection with a Funding Date pursuant to
Section 2, attached to a Custodial Identification Certificate, in hard copy and
in electronic format acceptable to the Custodian, setting forth a detailed
listing, as to each Eligible Medallion Loan, the applicable information
specified on Exhibit 1 to this Custodial Agreement.
"Medallion Loan Schedule and Exception Report" means a list of Eligible
Medallion Loans relating to the Trust Receipt delivered by the Custodian to the
Lender on each Business Day, reflecting the Medallion Loans held by the
Custodian for the benefit of the Lender, indicating any Exceptions with respect
to each Medallion Loan listed thereon. Each Medallion Loan Schedule and
Exception Report shall set forth (a) the Medallion Loans being pledged to the
Lender on any applicable Funding Date as well as the Medallion Loans previously
pledged to the Lender and held by the Custodian hereunder, (b) any Medallion
Loan that has been released to the Borrower pursuant to Section 7 hereof and the
date such Medallion Loan was released, (c) all Exceptions with respect thereto,
with any updates thereto from the time last delivered, and (d) the account
number, the Obligor name, the original principal balance and interest rate of
each Medallion Loan pledged to the Lender on any applicable Funding Date based
on the Custodian's physical review of the Funding Date Documentation.
"Note" means the secured note executed by the Borrower in favor of the
Lender in connection with the Loan and Security Agreement (as the same may be
amended or supplemented from time to time).
"Officer's Certificate" means a certificate signed by an Authorized
Representative of the Person delivering such certificate and delivered as
required by this Custodial Agreement.
"Request for Release and Receipt of Document" means a written request from
the Servicer for the release by the Custodian of Medallion Loan Documents,
substantially in the form of Exhibit 3.
"Required Documents" means, with respect to a Medallion Loan, each
instrument, agreement, document, certificate or other writing, now or hereafter
executed or delivered in respect of such Medallion Loan which is required to be
included in the Custodian's Medallion Loan File pursuant to Section 2.
4
"Servicing Agreement" shall mean the Servicing Agreement, dated as of the
date hereof, between the Borrower, the Lender and the Servicer for the servicing
of Medallion Loans, as the same may be amended, modified or supplemented from
time to time with the prior written consent of the Lender.
"Specified Event" means, with respect to any Medallion Loan, the occurrence
of any of the following:
(i) the repayment in full of all obligations of the Obligor under such
Medallion Loan;
(ii) the foreclosure upon such Medallion Loan or the sale of the
Medallion or other related Medallion Collateral in connection with a
foreclosure upon such Medallion Loan; or
(iii) the collection of insurance proceeds in respect of the related
Medallion or other Medallion Collateral.
"Trust Receipt" means the Trust Receipt in the form annexed hereto as
Exhibit 6 relating to the Medallion Loan and Medallion Loan Schedule and
Exception Reports delivered from time to time pursuant to this Agreement.
Section 2. Delivery of Custodian's Medallion Loan Files. (a) The Borrower
hereby certifies that it shall deliver (or cause to be delivered) to the
Custodian's Delivery Address and release to the Custodian as custodian for, and
bailee of, the Lender, subject to the terms of the Bailment Letters in the case
of Section 2(b), the documents described in this Section 2.
(b) No later than 3:00 P.M. New York time, five (5) Business Days prior to
the initial Funding Date under the Loan and Security Agreement, the Borrower
shall deliver (or cause to be delivered) to the Custodian (i) the Medallion Loan
Schedule for the initial Advance under the Loan and Security Agreement, and (ii)
pursuant to the Bailment Letters, the Funding Date Documentation for such
Medallion Loan. Any Required Documents delivered to the Custodian later than
3:00 P.M., New York time, shall be deemed to have been delivered on the next
Business Day.
(c) Except for the initial Funding Date, no later than 3:00 P.M. New York
time, three (3) Business Days prior to any Funding Date for a Medallion Loan,
the Borrower shall deliver (or cause to be delivered) to the Custodian (i) the
Medallion Loan Schedule for such Medallion Loan, and (ii) the Funding Date
Documentation for such Medallion Loan. Any Required Documents delivered to the
Custodian later than 3:00 P.M., New York time, shall be deemed to have been
delivered on the next Business Day.
(d) From time to time, the Borrower shall forward to the Custodian for
inclusion in the appropriate Custodian's Medallion Loan File (i) any additional
original Required Documents evidencing any assumption, consolidation, extension,
modification or waiver of a Medallion Loan approved by the Borrower and any
original documents returned from the applicable recording or filing offices.
Subject to the inclusion of these documents within the
5
Custodial Identification Certificate and the Medallion Loan Schedule delivered
by the Borrower, the Custodian shall hold such additional documents.
Section 3. Medallion Loan Schedule and Exception Report; Trust Receipt. (a)
If the Custodian has received (in computer readable form) a Custodial
Identification Certificate and has received the Funding Date Documentation for a
Medallion Loan identified on the Medallion Loan Schedule attached thereto by the
time set forth in Section 2 above, then the Custodian will deliver to the
Lender, via facsimile and by modem, no later than 5:00 p.m., New York City time,
one Business Day prior to such Funding Date, a Medallion Loan Schedule and
Exception Report for each Medallion Loan pledged hereunder on such date, with
Exceptions identified by the Custodian as current as of the date and time of
delivery of such Medallion Loan Schedule and Exception Report.
(b) Notwithstanding and in addition to the foregoing, on each Business Day,
the Custodian shall deliver to the Borrower and the Lender, via electronic
transmission acceptable to the Lender (or via facsimile in the event of a
delivery failure via such electronic transmission), a superseding Medallion Loan
Schedule and Exception Report, no later than 5:00 p.m., New York City time,
which shall supersede and replace any and all previously delivered Medallion
Loan Schedule and Exception Reports and which shall reflect the Exceptions
identified by the Custodian as of the time immediately prior to the time of
delivery of the report on the date of such report. In addition, on each Business
Day, the Custodian shall deliver to the Borrower and the Lender, via electronic
transmission acceptable to the Lender (or via facsimile in the event of a
delivery failure via such electronic transmission), a cumulative Medallion Loan
Schedule and Exception Report, at the end of each Business Day, but in any event
no later than 5:00 p.m., New York City time, which shall supersede and replace
any and all previously delivered Medallion Loan Schedule and Exception Reports
and which shall reflect the Exceptions identified by the Custodian as of the
time immediately prior to the time of delivery of the report on such Business
Day.
(c) Each Medallion Loan Schedule and Exception Report shall list all
Exceptions. Each Medallion Loan Schedule and Exception Report shall be
superseded by a subsequently issued Medallion Loan Schedule and Exception
Report. The delivery of each Medallion Loan Schedule and Exception Report to the
Lender shall be the Custodian's representation that, other than the Exceptions
listed as part of the Exception Report: (i) all documents required to be
delivered in respect of such Medallion Loan pursuant to Section 2 of this
Custodial Agreement have been delivered and are in the possession of the
Custodian as part of the Custodian's Medallion Loan File for such Medallion
Loan, (ii) all such documents have been reviewed by the Custodian and appear on
their face to be regular and to relate to such Medallion Loan and to satisfy the
requirements set forth in Section 2 of this Custodial Agreement, and (iii) each
Medallion Loan identified on such Medallion Loan Schedule and Exception Report
is being held by the Custodian as the bailee for the Lender and/or its designees
pursuant to this Custodial Agreement.
(d) In connection with a Medallion Loan Schedule and Exception Report
delivered hereunder by the Custodian, the Custodian shall make no
representations as to and shall not be responsible to verify (A) the validity,
legality, enforceability, due authorization, recordability, sufficiency, or
genuineness of any of the documents contained in each Custodian's
6
Medallion Loan File or (B) the collectability, insurability, effectiveness or
suitability of any such Medallion Loan or (C) whether such Medallion Loan is an
"Eligible Medallion Loan" pursuant to the Loan Agreement. The Borrower and the
Lender hereby give the Custodian notice that from and after the Funding Date,
the Lender shall have a security interest in each Medallion Loan identified on a
Medallion Loan Schedule and Exception Report until such time that the Custodian
receives written notice from the Lender that the Lender no longer has a security
interest in such Medallion Loan.
(e) In addition to the foregoing, the Custodian shall deliver to the
Lender, no later than 5:00 p.m., New York City time, one Business Day prior to
the initial Funding Date, the Trust Receipt. All Medallion Loan Schedule and
Exception Reports delivered by the Custodian hereunder shall be deemed to be
covered by the Trust Receipt.
Section 4. Borrower Remains Liable. Notwithstanding any term or provision
of this Agreement, (a) the Borrower shall remain liable under each other Loan
Document to which it is a party to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed and (b)
the exercise by the Custodian or the Lender of their respective rights under
this Agreement shall not release the Borrower from any of its duties in respect
of the Collateral under any other Loan Document to which the Borrower is a
party.
Section 5. Servicer Remains Liable. Notwithstanding any term or provision
of this Agreement, (a) the Servicer shall remain liable under each other Loan
Document to which it is a party to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed and (b)
the exercise by the Custodian or the Lender of their respective rights under
this Agreement shall not release the Servicer from any of its duties in respect
of the Collateral under any other Loan Document to which the Servicer is a
party.
Section 6. Obligations of the Custodian. (a) The Custodian shall use
reasonable care and due diligence in the performance of its duties hereunder.
The Custodian shall maintain continuous custody of all items constituting the
Custodian's Medallion Loan Files in secure fire-resistant facilities in
accordance with customary standards for such custody. The Custodian's Medallion
Loan Files pledged to the Lender shall be segregated from all other files held
by the Custodian. The Custodian makes no representations as to and shall not be
responsible to verify (i) the validity, legality, enforceability, sufficiency,
due authorization or genuineness of any document in each Custodian's Medallion
Loan File or of any of the Medallion Loans or (ii) the collectibility,
insurability, effectiveness or suitability of any Medallion Loan.
(b) With respect to the documents constituting each Custodian's Medallion
Loan File relating to a Medallion Loan listed on the related Medallion Loan
Schedule and Exception Report, the Custodian shall (i) act exclusively as the
bailee of, and custodian for, the Lender, (ii) hold all documents constituting
such Custodian's Medallion Loan File received by it for the exclusive use and
benefit of the Lender, and (iii) make disposition thereof only in accordance
with the terms of this Custodial Agreement or with written instructions
furnished by the Lender; provided, however, that in the event of a conflict
between the terms of this Custodial Agreement and the written instructions of
the Lender, the Lender's written instructions shall control.
7
(c) The Lender, upon the release of any or all of the Medallion Loans from
the lien of the Loan and Security Agreement or termination of the Loan and
Security Agreement as to any or all of the Medallion Loans, shall notify the
Custodian in writing in the form of Exhibit 2 with respect to such release, and
the Custodian shall then deliver the Custodian's Medallion Loan Files relating
to the Medallion Loans to the Borrower or the Borrower's designee.
(d) In the event that (i) the Lender, the Borrower or the Custodian shall
be served by a third party with any type of levy, attachment, writ or court
order with respect to any Custodian's Medallion Loan File or a document included
within a Custodian's Medallion Loan File or (ii) a third party shall institute
any court proceeding by which any Custodian's Medallion Loan File or a document
included within a Custodian's Medallion Loan 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 Custodian's Medallion Loan 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
Medallion Loan File or a document included within such Custodian's Medallion
Loan File as directed by such determination or, if no such determination is
made, in accordance with the provisions of this Agreement. Expenses of the
Custodian incurred as a result of such proceedings shall be borne by the
Borrower.
(e) The Custodian hereby represents and warrants to each other that this
Agreement has been duly authorized, executed and delivered by the Custodian and
constitutes the legal, valid and binding obligation of the Custodian enforceable
in accordance with its terms.
Section 7. Release of Custodian's Medallion Loan File. (a) The Custodian is
hereby authorized, upon the request of the Servicer and the satisfaction of the
applicable conditions set forth in clause (b) below, to release to the Servicer,
the Custodian's Medallion Loan File or other Medallion Loan Documents for an
Affected Medallion Loan identified in such request (the "Affected Medallion Loan
File"). Each such release by the Custodian shall be made by the close of
business on the second Business Day following such request and the satisfaction
of the conditions set forth in clause (b) below. All documents so released to
the Servicer shall be held by the Servicer in trust for the benefit of the
Lender in accordance with the Loan and Security Agreement. The Servicer shall
return to the Custodian each document previously requested from the Custodian's
Medallion Loan File when the Servicer's need therefor in connection with the
Specified Event no longer exists, unless the Medallion Loan shall have been
liquidated or such Medallion Loan (and the related Advances) shall have been
paid in full in accordance with the Loan Documents, in which case, upon receipt
of a certification to this effect from the Servicer to the Custodian, with
acknowledgment thereon by the Lender, the Servicer's prior receipt shall be
returned by the Custodian to the Servicer.
(b) The Custodian shall not release to the Servicer any Affected Medallion
Loan File unless each of the following conditions to such release have been
satisfied:
8
(i) the Custodian shall have received a Request for Release and
Receipt of Documents from the Servicer,
(ii) a Responsible Officer of the Servicer shall have certified in
such Request for Release and Receipt of Documents that (x) after giving
effect to the release of such Affected Medallion Loan File (A) no Borrowing
Base Deficiency shall exist, as determined in accordance with Section
2.07(b) of the Loan and Security Agreement, (B) no Default has occurred or
is continuing, and (y) the Medallion Loan to which such Affected Medallion
Loan File relates satisfies the requirements of the definition of "Affected
Medallion Loan" and
(iii) with respect to any Affected Medallion Loan as to which an event
described in clause (i) or (ii) of the definition of "Specified Event" has
occurred, a Responsible Officer of the Servicer shall have certified in
such Request for Release and Receipt of Documents that the full amount
owing by the Borrower under the Loan Documents with respect to such
Affected Medallion Loan has been deposited into the Collection Account;
provided that any of the conditions specified in this Section may be waived in a
written notice from the Lender to the Custodian.
Section 8. Fees and Expenses of the Custodian. The Custodian shall charge
such fees for its services (the "Custodial Fee") under this Custodial Agreement
as are set forth on the Custodial Fee Schedule set forth on Exhibit 7 hereto ,
the payment of which fees, together with the Custodian's expenses in connection
herewith, shall be solely the obligation of the Borrower and shall be paid in
accordance with Section 4.01(c) of the Servicing Agreement. In the event that
the Custodian resigns or is removed from its capacity as Custodian, the Borrower
shall be responsible for paying the fees of any successor Custodian.
Section 9. Examination of Custodian's Medallion Loan Files. Upon at least
one day's written notice to the Custodian (provided, that upon and during the
occurrence of an Event of Default under the Loan Documents, no such notice
requirement shall apply; provided, that pursuant to this Section, Lender shall
give notice to the Custodian if an Event of Default has occurred), the Lender
and its authorized representatives will be permitted during normal business
hours to examine the Custodian's Medallion Loan Files, documents, records and
other papers in the possession, or under the control, of the Custodian relating
to any or all of the Medallion Loans. At the expense of the Borrower, the Lender
may hire third party contractors to review the Medallion Loan Files.
Section 10. 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 insurance as is customary for similar insurance typically
maintained by banks that act as custodian in similar transactions.
Section 11. Periodic Statements. Within three (3) Business Days after the
written request of the Lender, the Custodian shall provide to the Lender and the
Borrower, in a
9
manner acceptable to the Custodian and the Lender a list of all the Medallion
Loans for which the Custodian holds a Custodian's Medallion Loan File pursuant
to this Agreement.
Section 12. Copies of Medallion Loan Documents. Within two (2) Business
Days after the written request of, and at the expense of, the Lender, the
Custodian shall provide the Lender with copies of the Medallion Loan Documents
then in the Custodian's possession. In addition, the Custodian shall provide to
the Lender and the Borrower such information, as each may from time to time
reasonably request, concerning the Medallion Loan Documents which are in the
possession of the Custodian.
Section 13. Resignation by and Removal of the Custodian; Successor
Custodian. (a) The Custodian may at any time resign and terminate its
obligations under this Agreement upon at least 30 days' prior written notice to
the Borrower, the Servicer and the Lender. Promptly after receipt of notice of
the Custodian's resignation, the Lender shall appoint, by written instrument, a
successor custodian. If the Lender fail to appoint a successor custodian within
30 days 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 Lender,
the Borrower, the Custodian and the successor custodian.
(b) The Lender may, with or without cause, upon at least thirty (30) days
prior written notice to the Custodian, remove and discharge the Custodian (or
any successor custodian thereafter appointed) from the performance of its
obligations under this Agreement. A copy of such notice shall be delivered to
the Borrower and the Servicer. Promptly after the giving of notice of removal of
the Custodian, the Lender shall appoint, by written instrument, a successor
custodian. One original counterpart of such instrument of appointment shall be
delivered to each of the Borrower, and to each of the Custodian and the
successor custodian.
(c) No resignation or removal of the Custodian and no appointment of a
successor custodian under this Section 14 shall become effective until the
acceptance of a successor custodian hereunder.
(d) In the event of the appointment of a successor Custodian, the Custodian
shall, upon the surrender of any outstanding Trust Receipts, at the expense of
the Borrower promptly transfer to the successor custodian, as directed in
writing by the Lender, all of the Medallion Loan Documents being administered
pursuant to this Agreement and, to the extent (if any) and in the manner
directed by the Lender, the Custodian shall complete the endorsements on the
Medallion Loans at the expense of the Borrower. Upon such transfer of such
Medallion Loan Documents to such successor Custodian, such successor Custodian
shall hold such Medallion Loan Documents as bailee (as that term is used in
Section 9-313 of the Uniform Commercial Code) of the Lender.
Section 14. Indemnity.
In the event that the Custodian fails to produce any document that was in
its possession pursuant to Section 2 within two (2) Business Days after required
or requested by the Lender or, pursuant to Sections 6(c) or 7, the Servicer (a
"Custodial Delivery Failure"), and
10
provided, that (i) Custodian previously delivered to the Lender a Medallion Loan
Schedule and Exception Report which did not list such document as an Exception
on the related Funding Date; (ii) such document is not outstanding pursuant to a
request for release of documents and receipt in the form annexed hereto as
Exhibit 2 or Exhibit 3; and (iii) such document was held by the Custodian on
behalf of the Lender as applicable, then the Custodian shall with respect to any
missing document related to such Medallion Loan including but not limited to, a
missing Medallion Loan or Medallion Note, indemnify the Lender and the Borrower
in accordance with the succeeding paragraph of this Section 15.
The Custodian agrees to indemnify and hold the Lender and the Borrower, and
their designees harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever, including reasonable attorney's fees, that may
be imposed on, incurred by, or asserted against it or them in any way relating
to or arising out of such Custodial Delivery Failure. The foregoing
indemnification shall survive any termination or assignment of the Custodial
Agreement.
The Borrower and the Lender, jointly and severally, agree to indemnify and
hold harmless the Custodian and its officers, directors, agents and employees
against any and all claims, losses, liabilities, damages or expenses (including,
but not limited to, attorneys' fees, court costs and costs of investigation) of
any kind or nature whatsoever arising out of or in connection with this
Agreement that may be imposed upon, incurred by or asserted against the
Custodian, except in each case to the extent arising from the Custodian's
willful misfeasance, bad faith or gross negligence. The Borrower shall reimburse
the Lender for all amounts paid by the Lender pursuant to this Section 15,
immediately upon the Lender's demand therefor. The provisions of this Section 15
shall survive the resignation or removal of the Custodian and the termination of
this Agreement.
Section 15. Limitation of Liability. (a) In connection with the Custodian's
timely performance of its obligations and duties hereunder, the Custodian shall
not be liable to the Borrower, the Lender, or any other Person with respect to
any action taken or not taken by it in the performance of its obligations under
this Agreement, other than for any liability arising out of (a) Section 15 or
(b) the Custodian's failure to perform such obligations in accordance with the
standard of care set forth in Section 6(a). The obligations of the Custodian
shall be determined solely by the express provisions of this Agreement. No
representation, warranty, covenant, agreement, obligation or duty of the
Custodian shall be implied with respect to this Agreement or the Custodian's
services hereunder.
(b) The Custodian shall be under no duty or obligation to inspect, review
or examine the Custodian's Medallion Loan Files to determine that the contents
thereof are genuine, enforceable or appropriate for the represented purposes or
that they have been actually recorded or that they are other than what they
purport to be on their face.
(c) The Custodian may rely, and shall be protected in acting or refraining
to act, upon and need not verify the accuracy of, any written instruction,
notice, order, request, direction, certificate, opinion or other instrument or
document believed by the Custodian to be genuine and to have been signed and
presented by the proper party or parties, which, with respect to the Borrower,
the Servicer and the Lender, shall mean signature and presentation by
11
Authorized Representatives whether such presentation is by personal delivery,
express delivery or facsimile.
(d) Except for the preservation of the Medallion Loan Documents pursuant to
the terms of this Agreement, the provisions of this Agreement shall not require
the Custodian to expend or risk its own funds or otherwise incur financial
liability in the performance of its duties under this Agreement if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity is not reasonably assured to it.
(e) The Custodian shall not be responsible or liable for, and makes no
representation or warranty with respect to, the validity, adequacy or perfection
of any lien upon, or security interest in, any Medallion Loans or Custodian's
Medallion Loan Files purported to be granted at any time to the Lender.
(f) If the Custodian shall at any time receive conflicting instructions
from the Lender and the Borrower with respect to the Custodian's Medallion Loan
Files and the conflict between such instructions cannot be resolved by reference
to the terms of this Agreement, the Custodian shall be entitled to rely on the
instruction of the Lender.
(g) The Custodian shall have no obligation to monitor or verify whether a
Specified Event has occurred or is continuing.
Section 16. Term of Agreement. This Agreement shall be terminated upon (a)
the final payment or other liquidation (or advance with respect thereto) of the
last Medallion Loan in the Custodian's Medallion Loan Files, or (b) the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Medallion Loan in the Custodian's Medallion Loan Files, and
the final remittance of all funds due the Lender under the Loan and Security
Agreement.
If either of the circumstances described in clause (a) or clause (b) of
this Section 17 shall occur, the Borrower and the Lender shall send notice of
such occurrence to the Custodian, and the Custodian shall promptly deliver all
documents remaining in the Custodian's Medallion Loan Files to, or at the
direction of, the Borrower.
Section 17. Authorized Representatives. The names of the officers of the
Borrower and of the Lender who are authorized to give and receive notices,
requests and instructions and to deliver certificates and documents in
connection with this Agreement on behalf of the Borrower and on behalf of the
Lender ("Authorized Representatives") are set forth on Exhibit 4, along with the
specimen signature of each such officer. From time to time, the Borrower and the
Lender 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.
Section 18. Notices. All demands, notices and communications relating to
this Agreement shall be in writing and shall be deemed to have been duly given,
by United States mail, facsimile transmission (followed by mail or overnight
courier delivery) 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
12
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.
The Borrower:
Taxi Medallion Loan Trust I
437 Madison Avenue
New York, New York 10022
Attention: President
Telecopier No.: 212-328-3654
Telephone No.: 212-328-3654
The Servicer:
Medallion Funding Corp.
437 Madison Avenue
New York, New York 10022
Attention: President
Telecopier No.: 212-328-2121
Telephone No.: 212-328-2101
The Lender:
Merrill Lynch Bank USA
15 W. South Temple
Suite 300
Salt Lake City, Utah 84101
Attention: Louise Alder
Telecopier No.: 801-531-7470
Telephone No.: 801-526-8324
with a copy to:
Merrill Lynch Global Asset Based Finance
4 World Financial Center
New York, New York 10080
Attention: Joshua Green
Telecopier No.: 212-449-6673
Telephone No.: 212-449-7330
13
The Custodian:
Wells Fargo Bank Minnesota, National Association
Sixth and Marquette Avenue
MAC N9311-161
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services/sset-Backed
Administration
Telephone: (612) 667-8058
Fax Number: (612) 667-3539
Section 19. 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.
Section 20. Assignment. Neither the Borrower nor the Custodian may assign
its rights or delegate its obligations under this Agreement without the express
written consent of the Lender except as otherwise set forth in this Agreement.
Section 21. Counterparts. For the purpose of facilitating the execution of
this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed to
be an original and together shall constitute and be one and the same instrument.
Section 22. Headings. The Section headings are not part of this Agreement
and shall not be used in its interpretation.
Section 23. Use of Words. The definitions set forth in this Agreement
include both the singular and plural.
Section 24. Transmission of Custodian's Medallion Loan Files. Written
instructions as to the method of shipment and shipper(s) the Custodian is
directed to utilize in connection with transmission of Custodian's Medallion
Loan Files and Medallion Loan Documents in the performance of the Custodian's
duties hereunder shall be delivered by the Borrower to the Custodian prior to
any shipment of any Custodian's Medallion Loan Files and Medallion Loan
Documents hereunder. The Borrower will arrange for the provision of such
services at its sole cost and expense and will maintain such insurance against
loss or damage to Custodian's Medallion Loan Files and Medallion Loan Documents
as the Borrower deems appropriate.
Section 25. No Adverse Interest of Custodian. By execution of this
Custodial Agreement, the Custodian represents and warrants that it currently
holds, and during the existence of this Custodial Agreement shall hold, no
adverse interest, by way of security or otherwise, in any Medallion Loan, and
hereby waives and releases any such interest which it may have in any Medallion
Loan as of the date hereof. The Medallion Loans shall not be subject to any
security interest, lien or right to set-off by Custodian or any third party
claiming through Custodian, and Custodian shall not pledge, encumber,
hypothecate, transfer, dispose of, or otherwise grant any third party interest
in, the Medallion Loans.
14
Section 26. SUBMISSION TO JURISDICTION; WAIVERS. EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS CUSTODIAL AGREEMENT, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT, TO THE EXTENT PERMITTED BY LAW, SERVICE OF PROCESS IN
ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO ITS ADDRESS OF WHICH EACH OF THE OTHER PARTIES HERETO
SHALL HAVE BEEN NOTIFIED IN ACCORDANCE WITH SECTION 20 HEREOF; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO SUE IN ANY OTHER JURISDICTION.
Section 27. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS CUSTODIAL AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WELLS FARGO MINNESOTA BANK,
NATIONAL ASSOCIATION, as
Custodian
By: /s/ Eileen R. O'Connor
------------------------------
Name: Eileen R. O'Connor
Title: Assistant Vice President
MERRILL LYNCH BANK USA, as Lender
By: /s/ David L. Millett
------------------------------
Name: David L. Millett
Title: Vice President
TAXI MEDALLION LOAN TRUST I, as Borrower
By: /s/ Andrew Murstein
------------------------------
Name: Andrew Murstein
Title: President
MEDALLION FUNDING CORP., as Servicer
By: /s/ Andrew Murstein
------------------------------
Name: Andrew Murstein
Title: President
By: /s/ Alvin Murstein
------------------------------
Name: Alvin Murstein
Title: Chief Executive Officer
EXHIBIT 1
---------
MEDALLION LOAN SCHEDULE
-----------------------
(i) Account Number
(ii) Obligor Name
(iii) Medallion Funding Corp. Branch
(iv) Location of Medallion
(v) Type of Finance
(vi) Refinance Loan of
(vii) Pay-off Amount
(viii) Original Note Balance
(ix) Date of Medallion Note
(x) Original Date of Medallion Loan
(xi) Original Term
(xii) Monthly Payment or IO (interest only)
(xiii) Balloon Payment
(xiv) Approximate Recent Medallion Value Per Auditor
(xv) Auditor Calculated Loan to Value Orig. Loan
(xvi) LTV >(over) 80%
(xvii) Individual or Corporate, if appropriate
(xviii) Rate Type
(xix) Rate
(xx) Part. Loan
(xxi) Part. Pct.
(xxii) Number of Medallions as Collateral
(xxiii) Medallion Value Per Company
(xxiv) LTV Per Company
(xxv) LTV > 80%
(xxvi) LTV Per Auditor
(xxvii) LTV>80%
(xxviii) Loan Bal. 4/30/02
(xxix) PIF Date or Loan Balance at 6/3/02
(xxx) Per Pay History Date of Last Payment
(xxxi) Per Pay History Paid to Date
(xxxii) Our Aging at 6/3/02
(xxxiii) Loan Application
(xxxiv) Signed Medallion Note
(xxxv) Security Agreement
(xxxvi) Guaranty
(xxxvii) Credit Review
(xxxviii) MK Michael Kowalsky MR Marie Russo Loan Approval
(xxxix) Evidence of Filing UCC
(xl) Additional Collateral Noted As
(xli) Other Comments
EXHIBIT 2
---------
RELEASE OF MEDALLION LOANS
--------------------------
TO: Wells Fargo Bank Minnesota, National Association
MAC N9328-011
751 Kasota Avenue
Minneapolis, Minnesota 55414
Attention: APS Custody Vault
The undersigned, in accordance with Section 6(c) of the Custodial Agreement
dated as of September 13, 2002 among Merrill Lynch Bank USA, Taxi Medallion Loan
Trust I, Medallion Funding Corp. and you, hereby releases all of its lien and
interest in the Medallion Loans and related Custodian's Medallion Loan File
identified in Schedule A to this Release of Medallion Loans.
MERRILL LYNCH BANK USA
By:
------------------------------
Name:
Title:
Date:
EXHIBIT 3
---------
REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS
--------------------------------------------
Wells Fargo Bank Minnesota, National Association
MAC N9328-011
751 Kasota Avenue
Minneapolis, Minnesota 55414
Attention: Eileen O'Connor, Asset Backed Administration
Re: Custodial Agreement (the "Custodial Agreement") dated as of September
13, 2002 among Merrill Lynch Bank USA ("Lender"), Wells Fargo Bank
Minnesota, National Association ("Custodian"), Medallion Funding Corp.
("Servicer") and Taxi Medallion Loan Trust I ("Borrower")
In connection with the administration of the Medallion Loans held by you as
the Custodian for the Lender, we request the release of the (Custodian's
Medallion Loan File/specify documents) for the Medallion Loans described in
Annex A hereto, for the reason indicated.
Reason for Requesting Documents (check one)
1. Medallion Loan Paid in Full
2. Medallion Loan in Foreclosure
3. Collection of Insurance Proceeds
4. Other (explain)
If Item 1 or 2 above is checked, and if all or part of the Custodian's Medallion
Loan 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 Medallion Loan.
If Item 3 or 4 above is checked, upon our return of all of the above documents
to you as the Custodian, please acknowledge your receipt by signing in the space
indicated below, and returning this form.
The undersigned being a Responsible Officer of the Servicer hereby certifies
that:
(a) after giving effect to the release of the Affected Medallion Loan File
described above (i) no Borrowing Base Deficiency will exist, and (ii) no Default
has occurred or is continuing;
(b) the Medallion Loan to which such Affected Medallion Loan File relates
satisfies the requirements of the definition of "Affected Medallion Loan"; and
(c) if such Medallion Loan is an Affected Medallion Loan described in
clause (i) or (ii) of the definition of "Specified Event," the full amount owing
by the Borrower under the Loan Documents with respect to such Affected Medallion
Loan has been deposited into the Collection Account.
MEDALLION FUNDING CORP.
By:_______________________________
Print Name:_______________________
Title:____________________________
Date:_____________________________
By:_______________________________
Print Name:_______________________
Title:____________________________
Date:_____________________________
Acknowledged and Agreed by:
MERRILL LYNCH BANK USA,
as Lender
By:_____________________________________
Print Name:_____________________________
Title:__________________________________
Date:___________________________________
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Custodian
By:_____________________________________
Print Name:_____________________________
Title:__________________________________
Date:___________________________________
ANNEX A TO REQUEST FOR
----------------------
RELEASE AND RECEIPT
-------------------
OF DOCUMENTS
------------
MEDALLION LOANS FOR WHICH MEDALLION LOAN DOCUMENTS ARE
------------------------------------------------------
REQUESTED TO BE RELEASED
------------------------
- ------------------------------- ------------------------- --------------------
Name and Address of Obligor Medallion Loan Number Medallion Number
- ------------------------------- ------------------------- --------------------
EXHIBIT 4
---------
Authorized Representatives
a) of Medallion Funding Corp. (as Servicer)
Name Specimen Signature
- ---- ------------------
1. Andrew Murstein
---------------------------------
-----------------------------------
2. Alvin Murstein
---------------------------------
-----------------------------------
3. James E. Jack
---------------------------------
-----------------------------------
4.
---------------------------------
-----------------------------------
5.
---------------------------------
-----------------------------------
6.
--------------------------------- -----------------------------------
b) of Taxi Medallion Loan Trust I (as Borrower)
Name Specimen Signature
- ---- ------------------
1. Andrew Murstein
---------------------------------
-----------------------------------
2. Alvin Murstein
---------------------------------
-----------------------------------
3. James E. Jack
---------------------------------
-----------------------------------
4.
---------------------------------
-----------------------------------
5.
---------------------------------
-----------------------------------
6.
--------------------------------- -----------------------------------
c) of Merrill Lynch Bank USA (as Lender)
Name Specimen Signature
- ---- ------------------
1.
---------------------------------
-----------------------------------
2.
---------------------------------
-----------------------------------
3.
---------------------------------
-----------------------------------
4.
--------------------------------- -----------------------------------
d) of Wells Fargo Bank Minnesota, National Association (as Custodian)
Name Specimen Signature
- ---- ------------------
1. Eileen R. O'Connor
---------------------------------
-----------------------------------
2. Lori Swanell
---------------------------------
-----------------------------------
3. Steve Naasz
---------------------------------
-----------------------------------
4. Kurt Morgenweck
--------------------------------- -----------------------------------
EXHIBIT 5
---------
CUSTODIAL IDENTIFICATION CERTIFICATE
On this __ day of ________, 200_, TAXI MEDALLION LOAN TRUST I, the
("Borrower"), under that certain Custodial Agreement, dated as of September 13,
2002 (the "Custodial Agreement"), among the Borrower, WELLS FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, as Custodian, MEDALLION FUNDING CORP. as
Servicer, and MERRILL LYNCH BANK USA, as Lender, does hereby instruct the
Custodian to hold, in its capacity as Custodian, the Custodian's Medallion Loan
Files with respect to the Medallion Loans listed on Attachment A hereto, which
Medallion Loans shall be subject to the terms of the Custodial Agreement as of
the date hereof.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Custodial Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Custodial Identification
Certificate to be executed and delivered by its duly authorized officer as of
the day and year first above written.
Funding Date: _________________ TAXI MEDALLION LOAN TRUST I
By
------------------------------
Name:
Title:
By
------------------------------
Name:
Title:
Attachment A
------------
to Exhibit 5
------------
PLEDGED MEDALLION LOANS
[Attach appropriate Medallion Loan Schedules]
EXHIBIT 6
---------
TRUST RECEIPT
Merrill Lynch Bank USA
15 W. South Temple
Suite 300
Salt Lake City, Utah 84101
Attention: Louise Alder
____________, 200_
Re: Custodial Agreement, dated as of September 13, 2002 (the "Custodial
Agreement"), among the Borrower, WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Custodian, MEDALLION FUNDING CORP. as Servicer, and
MERRILL LYNCH BANK USA, as Lender
---------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 3(e) of the above-referenced
Custodial Agreement (capitalized terms not otherwise defined herein having the
meanings ascribed to them in the Custodial Agreement), the undersigned, as the
Custodian, hereby certifies as to each Medallion Loan described in the
accompanying Medallion Loan Schedule and Exception Report all matters (subject
to the Exceptions listed therein) set forth in Section 3(c) of the Custodial
Agreement.
The delivery of the attached Medallion Loan Schedule and Exception Report
evidences that (i) the Custodian has reviewed all documents required to be
delivered in respect of each Medallion Loan listed herein pursuant to Section 2
of the Custodial Agreement, and such documents other than the Exceptions listed
herein are in the possession of the Custodian as part of the Custodian's
Medallion Loan File for such Medallion Loan, (ii) the Custodian is holding each
Medallion Loan identified on the Medallion Loan Schedule and Exception Report,
pursuant to the Custodial Agreement, as the bailee of and custodian for the
Lender and (iii) such documents have been reviewed by the Custodian and appear
on their face to be regular and to relate to such Medallion Loan and satisfy the
requirements set forth in Section 2 of the Custodial Agreement and the Review
Procedures.
The Custodian makes no representations as to, and shall not be responsible
to verify, (i) the validity, legality, enforceability, due authorization,
recordability, sufficiency, or genuineness of any of the documents contained in
each Custodian's Medallion Loan File or (ii) the collectability, insurability,
effectiveness or suitability of any such Medallion Loan.
Each Medallion Loan Schedule and Exception Report covering all Medallion
Loans pledged to the Lender, delivered to the Lender by the Custodian shall
supersede and cancel the previously delivered Medallion Loan Schedule and
Exception Report attached to the Trust Receipt, and shall control and be binding
upon the parties hereto.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Custodian
By
------------------------------
Name:
Title:
EXHIBIT 7
---------
FEES AND EXPENSES OF THE CUSTODIAN
WELLS FARGO BANK MINNESOTA, N.A.
Custodian Fee Schedule
- --------------------------------------------------------------------------------
I. Account Acceptance Fee: $5,000.00
- --------------------------------------------------------------------------------
This fee covers all initial services including the examination, execution and
delivery of the governing documents, and establishing the necessary records and
accounts. Acceptance Fee is not contingent upon transaction closing and is
payable no later than the closing date.
- --------------------------------------------------------------------------------
II. Custodian Fees:
- --------------------------------------------------------------------------------
Monthly Administration Fee: $750.00
Includes maintaining the custody account on the Collateral Online Tracking
System, monitoring and maintaining the covenant items of the transaction
documents, reporting as necessary on the collateral, making miscellaneous
photocopies and sending miscellaneous faxes.
Deposit and Certification of Loan Files: $4.00
Per file. Includes inventory and review of documents in file and
reinstatement of released and rejected files.
Annual Safekeeping Fee: $2.50
Per file; billed monthly.
Final/Trailing Documents: $0.50
Per occurrence. Includes filing of documents in the loan file.
Interfiling/File Consolidation Fee: $1.00
Per file; assumes the receipt of the loan files are in numerical order.
Release Request: $2.00
Per occurrence; 48 hour turnaround time, excludes shipping expenses.
This proposal assumes that Wells Fargo is to receive an electronic file
schedule prior to or with the shipment of files and that the order of the
files and electronic file schedule are consistent. In addition to the
above, Wells Fargo is not responsible for all delivery fees pertaining to
the shipment of the files to and from Wells Fargo. This fee will be charged
monthly in arrears and is due upon receipt.
- --------------------------------------------------------------------------------
III. Counsel Fee: $6,000.00 est.
- --------------------------------------------------------------------------------
Counsel fees will be billed on an actual basis. The legal fees will cover an
outside counsel review of both draft and final documentation, as well as an
in-house legal enforceability opinion that the governing documents are valid,
binding agreements of the Trustee. Should additional opinions be required,
notice will be given in advance concerning the billing of additional amounts.
Any out-of-pockets will be billed in addition to the above. Counsel Fee is not
contingent upon transaction closing and is payable no later than the closing
date.
- --------------------------------------------------------------------------------
IV. Miscellaneous: $6,000.00 est.
- --------------------------------------------------------------------------------
The fees set forth above are subject to the review and acceptance of final
transaction structure and documentation and are subject to change should
circumstances warrant. Additional out-of-pocket expenses may be billed in
addition to the above-mentioned fees. Such fees can include, but are not limited
to, travel expenses for Trust Officers attending out-of-town closings and due
diligence visits. Additional fees may be charged for services not specifically
covered in this proposal including litigation, bankruptcy, transition time, and
default administration (bond, servicer or other default) and will be assessed in
amounts commensurate with the services rendered. Payment of these costs is not
contingent upon the transaction closing.
Acknowledged this ______ day of ___________________, 2002.
By: __________________________________________________
EXHIBIT 8-A
-----------
FORM OF BAILMENT LETTER
(FLEET NATIONAL BANK)
EXHIBIT 8-B
-----------
FORM OF BAILMENT LETTER
(MEDALLION FUNDING)